CHAPTER 1. COMMISSIONER OF LABOR

Sec.

History

Amendments--2005 (Adj. Sess.) 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006, substituted "Commissioner of Labor" for "commissioner of labor and industry" in the chapter heading.

Workers' compensation; administrative flexibility; temporary authority. 2019, No. 150 (Adj. Sess.), § 1 provides: "(a) In order to effectuate the remedial purpose of Vermont's Workers' Compensation law and to ensure that injured workers are able to obtain the workers' compensation benefits they are entitled to, the Commissioner shall, during a declared state of emergency related to COVID-19, have authority to issue guidance and adopt procedures to extend deadlines or temporarily amend or waive specific requirements of 21 V.S.A. chapter 9 and the rules adopted pursuant to that chapter.

"(b) Any guidance or procedures that are issued or adopted by the Commissioner pursuant to this section shall be effective during the state of emergency in which they are adopted, and the Commissioner shall establish a procedure to transition those claims impacted by the emergency to preexisting rules within 45 days after the termination of the state of emergency.

"(c) The Commissioner shall post any guidance issued or procedure adopted pursuant to this section on the Department's website and shall make reasonable efforts to provide prompt notice of the guidance or procedure to employers, attorneys, and employee organizations.

"(d) The Commissioner shall not be required to initiate rulemaking pursuant to 3 V.S.A. § 831(c) in relation to any guidance issued or procedure adopted pursuant to this section."

Prospective repeal of 2019, No. 150 (Adj. Sess.), § 1 note. 2019, No. 150 (Adj. Sess.), § 3, as amended by 2021, No. 2 , § 4, provides: "In the absence of legislative action to the contrary, Secs. 1 and 2 of this act are repealed on the 30th day following the termination of the state of emergency declared in response to COVID-19 pursuant to Executive Order 01-20."

Retroactive applicability of 2019, No. 150 (Adj. Sess.), § 1 note. 2019, No. 150 (Adj. Sess.), § 7(a) provides: "Notwithstanding 1 V.S.A. § 214, the section and Sec. 1 and 2 of this act shall take effect on passage and shall apply retroactively to March 1, 2020."

Retroactive applicability of 2021, No. 2 , § 4 note. 2021, No. 2 , § 5 provides: "This act shall take effect on passage; except that notwithstanding 1 V.S.A. § 214, Secs. 2, 3, and 4 shall take effect retroactively on January 15, 2021."

Intent; workers' compensation; extension of COVID-19 related provisions. 2021, No. 2 , § 1 provides: "It is the intent of the General Assembly to continue uninterrupted from January 15, 2021 until 30 days after the termination of the state of emergency declared in response to COVID-19 pursuant to Executive Order 01-20:

"(1) the Commissioner of Labor's authority pursuant to 2020 Acts and Resolves No. 150, Sec. 1 to temporarily extend deadlines and amend or waive specific requirements of Vermont's workers' compensation laws during a state of emergency related to COVID-19; and

"(2) the provisions of 2020 Acts and Resolves No. 150, Sec. 2 establishing in certain circumstances a rebuttable presumption that a worker who is diagnosed with COVID-19 is entitled to benefits under Vermont's workers' compensation laws."

ANNOTATIONS

1. Construction.

Vermont's Unemployment Compensation law is a remedial law, having benevolent objectives, and must be given liberal construction. Fleece on Earth v. Department of Employment and Training, 181 Vt. 458, 923 A.2d 594 (May 4, 2007).

Vermont's Unemployment Compensation law is designed to remove economic disabilities and distress resulting from involuntary unemployment, and to assist those workers who become jobless for reasons beyond their control. Therefore, no claimant should be excluded unless the law clearly intends such exclusion. Fleece on Earth v. Department of Employment and Training, 181 Vt. 458, 923 A.2d 594 (May 4, 2007).

§ 1. Department created; Commissioner, appointment.

  1. The Department of Labor is hereby created to administer the laws relating to labor in chapter 1, subchapters 4 and 5 of chapter 3, and chapters 5, 9, and 12 through 17 of this title and other laws assigned to the Department for administration. There shall be within the Department the Apprenticeship Council and other boards, councils, and committees specially assigned to the Department.
  2. Biennially, with the advice and consent of the Senate, the Governor shall appoint a Commissioner of Labor.

    Amended 1959, No. 329 (Adj. Sess.), § 30, eff. March 1, 1961; 1967, No. 71 , § 1; 2005, No. 103 (Adj. Sess.), § 1, eff. April 5, 2006.

History

Source. V.S. 1947, § 8048. P.L. § 6480. G.L. § 5752. 1917, No. 171 , § 1. 1915, No. 164 , § 28.

Reference in text. - 2009. Chapters 5 through 17 of this title, referred to in subsec. (a) were changed to "chapters 5, 9, and 12 through 17 of this title" for purposes of clarity in light of the repeal of chapter 7 by 1973, No. 213 (Adj. Sess.), § 3, eff. April 3, 1974; chapter 8 by 1995, No. 188 (Adj. Sess.), § 4; and chapter 11 by 1999, No. 41 , § 8(a)(1).

The Board to award compensation to State employees, referred to in subsec. (a), no longer exists. Section 628 of this title, relating to the Board, was repealed by 1981, No. 165 (Adj. Sess.), § 7.

Amendments--2005 (Adj. Sess.) Subsec. (a): Amended generally.

Subsec. (b): Substituted "Commissioner of Labor" for "commissioner of labor and industry".

Amendments--1967. Subsec. (a): Amended generally.

Subsec. (b): Substituted "Labor and Industry" for "Industrial Relations" following "Commissioner of".

Subsec. (c): Added.

Amendments--1959 (Adj. Sess.). Rewrote the catchline, designated existing provisions of section as subsec. (b) and added subsec. (a).

Cross References

Cross references. Apprenticeship Division and Council generally, see § 1101 et seq. of this title.

Commissioner of Labor and Industry to receive free copies of Supreme Court opinions involving administration of labor laws, see 4 V.S.A. § 18(d).

Passenger Tramway Board within Department of Labor and Industry, see 31 V.S.A. § 701 et seq.

§ 1a. Reports.

The Commissioner of Labor shall prepare and submit, consistent with 2 V.S.A. § 20(a) , a report on attorney's fees, pursuant to subsection 678(c) of this title.

Added 2003, No. 122 (Adj. Sess.), § 294n; amended 2003, No. 122 (Adj. Sess.), § 294x, eff. April 1, 2005; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Amendments--2005 (Adj. Sess.) Substituted "Commissioner of Labor" for "commissioner of labor and industry".

Amendments--2003 (Adj. Sess.). Rewrote the section.

Effective date of amendment of section. 2003, No. 122 (Adj. Sess.), Subsec. 298(g) provides that Sec. 294x, which amends this section, shall take effect on April 1, 2005.

§ 2. Cooperation with United States.

With the written approval of the Governor, the Commissioner of Labor is authorized and empowered to cooperate and contract in the name and on behalf of the State with the U.S. Department of Labor in the work of inspection and investigation under the federal Fair Labor Standards Act and to accept grants and assistance from the U.S. Department of Labor for such inspection and investigation.

Amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Source. V.S. 1947, § 8049. 1939, No. 11 , § 5.

Reference in text. The Fair Labor Standards Act, referred to in this section, is codified as 29 U.S.C. § 201 et seq.

Amendments--2005 (Adj. Sess.) Substituted "Commissioner of Labor" for "commissioner of labor and industry".

§ 3. Cooperation with Attorney General and commissioners of financial regulations and of taxes; memoranda of understanding.

  1. The Attorney General and the Commissioner of Labor shall enter into a memorandum of understanding to establish a process for the referral of complaints received by the Commissioner of Labor to the Attorney General, the sharing of information, and the coordination of investigatory and enforcement resources in relation to the provisions of sections 346, 387, 712, and 1379 of this title. Notwithstanding any provision of 9 V.S.A. § 2460(a) to the contrary, the memorandum shall, at a minimum, provide for:
    1. notice from the Attorney General to the Commissioner of Labor regarding complaints received by the Attorney General that relate to a possible violation of the laws under the jurisdiction of the Commissioner;
    2. a procedure for the Commissioner of Labor to refer a complaint to the Attorney General if the employer complained of appears to be engaging in willful, substantial, or systemic violations of the provisions of chapter 5, subchapter 2 or 3 of this title, or chapter 9 or 17 of this title through the misclassification of employees;
    3. a requirement that the Commissioner of Labor shall, upon receiving a complaint against an employer that has been determined to have engaged in employee misclassification on two separate occasions during the past five years or is alleged to have misclassified five or more employees, refer the complaint to the Attorney General and coordinate with the Attorney General to investigate the complaint and, depending on the outcome of the investigation, seek any appropriate penalties pursuant to the provisions of this title and 9 V.S.A. §§ 2458-2461 ;
    4. the exchange of information and coordination of investigatory and enforcement resources between the Commissioner of Labor and the Attorney General; and
    5. compliance with the requirements of 20 C.F.R. Part 603 in relation to any information disclosed pursuant to section 1314 of this title.
  2. The Commissioner of Labor shall enter into separate memoranda of understanding with the Commissioner of Financial Regulation and the Commissioner of Taxes to establish a process for sharing information related to investigations of the misclassification and miscoding of workers pursuant to the laws under their jurisdiction. The memoranda shall provide, at a minimum, that any disclosure of information pursuant to section 1314 of this title shall comply with the requirements of 20 C.F.R. Part 603.
  3. The Attorney General shall enter into separate memoranda of understanding with the Commissioner of Financial Regulation and the Commissioner of Taxes to establish a process for sharing information related to an investigation by the Attorney General pursuant to sections 346, 387, 712, and 1379 of this title. Notwithstanding any provision of 9 V.S.A. § 2460(a) to the contrary, each memorandum shall, at a minimum, provide for the disclosure by the Attorney General of any instance in which he or she has determined that an employer has, through the misclassification of an employee, violated the provisions of chapter 5, subchapter 2 or 3 of this title or chapter 9 or 17 of this title and the basis for that determination.
  4. Nothing in this section shall be construed to prevent the Commissioner of Labor from investigating complaints of violations of the laws under his or her jurisdiction or enforcing those laws pursuant to the applicable provisions of this title.
  5. Information shared pursuant to this section shall be exempt from public inspection and copying under the Public Records Act and shall be kept confidential. Notwithstanding 1 V.S.A. § 317(e) , the Public Records Act exemption created in this section shall continue in effect and shall not be repealed through the operation of 1 V.S.A. § 317(e) .

    Added 2019, No. 85 (Adj. Sess.), § 8, eff. Feb. 20, 2020.

History

Effective date. 2019, No. 85 (Adj. Sess.), § 8 makes this section effective February 20, 2020, and further provides the memoranda of understanding required pursuant to that section shall be executed not more than 90 days after the effective date.

Prior law. Former § 3, relating to inspectors and the deputy commissioner, was derived from V.S. 1947, § 8050; 1945, No. 151 , § 3; P.L. § 6481; 1921, No. 166 ; G.L. § 5754; and 1917, No. 171 , § 7 and was repealed by 1971, No. 205 (Adj. Sess.), § 7.

§ 4. Duties as to employment and payment of wages.

The Commissioner or the Commissioner's agent shall make examinations and investigations to see that the laws pertaining to the employment of minors and the weekly payment of wages are being complied with and for such purposes may enter any place where persons are employed.

Amended 2017, No. 74 , § 30.

History

Source. V.S. 1947, § 8051. 1945, No. 151 , § 2. P.L. § 6482. 1933, No. 157 , § 6156. G.L. § 5756. 1917, No. 171 , § 6.

Editor's note. The language "laws pertaining to the employment of . . . women" is obsolete. The laws referred to were contained in subchapter 4 of chapter 5 of this title. That subchapter, as amended by 1969, No. 218 (Adj. Sess.), § 1, no longer pertains to employment of women.

Amendments--2017. Deleted "and women" following "minors".

§ 5. Repealed. 1971, No. 205 (Adj. Sess.), § 7, eff. date, see note set out below.

History

Former § 5. Former § 5, relating to reports of violations and prosecutions, was derived from V.S. 1947, § 8052; P.L. § 6483; 1933, No. 157 , § 6157; G.L. § 5756; 1917, No. 171 , § 6.

Effective date. 1971, No. 205 (Adj. Sess.), § 8, approved March 31, 1972, provided in part: "This act shall take full effect July 1, 1973 or at an earlier date which the governor may set by executive order, which shall be not sooner than April 1, 1973."

Preservation of rights. 1971, No. 205 (Adj. Sess.), § 5, provided: "The repeal by this act [ 1971, No. 205 (Adj. Sess.)] of any provision of law shall not affect any act done, liability incurred, or any right accrued or vested, or affect, abate or prevent any suit or prosecution pending or to be instituted to enforce any right or penalty or punish for any offense under the authority of any of the repealed laws, nor shall the repeal affect the validity of any contract to which the State, or any agency of the state, is a party in interest."

§ 6. Repealed. 2017, No. 17, § 1.

History

Former § 6. Former § 6, relating to the Commissioner of Labor's duty when United States at war, was derived from V.S. 1947, § 8053; P.L. § 6484; G.L. § 5757; 1917, No. 172 and amended by 2005, No. 103 (Adj. Sess.), § 3.

Annotations From Former § 6

1. Revocation of suspension.

Authority to revoke, like the authority to suspend, is permissive, and suspension may be revoked without reference to legal termination of war. 1944-46 Op. Atty. Gen. 158.

CHAPTER 3. SAFETY

Cross References

Cross references. Employer's Liability and Workers' Compensation, see § 601 et seq. of this title.

Subchapter 1. Safety Inspections

§§ 101-109. Repealed. 1967, No. 291 (Adj. Sess.), § 1, eff. Jan. 1, 1969.

History

Former §§ 101-109. Former § 101, relating to factories and workshops, was derived from V.S. 1947, § 8187; P.L. § 6603; G.L. § 5846; 1912, No. 188 , § 5.

Former § 102, relating to inspections and reports, was derived from 1953, No. 125 , § 4; V.S. 1947, § 8188; 1945, No. 151 , § 2; 1935, No. 165 , § 1; P.L. § 6604; 1933, No. 157 , § 6278; G.L. § 5847; 1917, No. 171 , § 4; 1917, No. 254 , § 5697; 1912, No. 188 , § 3.

Former § 103, relating to notice to owners to make changes, was derived from 1953, No. 125 , § 5; V.S. 1947, § 8189; 1945, No. 151 , § 2; 1941, No. 163 , § 1; 1935, No. 165 , § 2; P.L. § 6605; 1933, No. 157 , § 6279; G.L. § 5847; 1917, No. 171 , § 4; 1917, No. 254 , § 5697; 1912, No. 188 , § 3.

Former § 104, relating to safety regulations, was derived from V.S. 1947, § 8190; 1945, No. 151 , § 1; 1941, No. 163 , § 1; 1935, No. 165 , § 2; P.L. § 6605; 1933, No. 157 , § 6279; G.L. § 5847; 1917, No. 171 , § 4; 1917, No. 254 , § 5697; 1912, No. 188 , § 3.

Former § 105, relating to penalties for failure to obey notice to make changes, was derived from 1953, No. 125 § 6; V.S. 1947, § 8191; P.L. § 6606; G.L. § 5847; 1917, No. 171 , § 4; 1917, No. 254 , § 5697; 1912, No. 188 , § 3.

Former § 106, relating to penalties for refusal to permit inspections, was derived from 1953, No. 125 , § 7; V.S. 1947, § 8192; 1945, No. 151 , § 2; P.L. § 6607; 1933, No. 157 , § 6281; G.L. § 5847; 1917, No. 171 , § 4; 1917, No. 254 , § 5697; 1912, No. 188 , § 3.

Former § 107, relating to inspection of steam engines and boilers, was derived from V.S. 1947, § 8193; 1945, No. 151 , § 2; P.L. § 6608; 1933, No. 157 , § 6282; G.L. § 6325; P.S. § 5509; V.S. § 4700; 1886, No. 86 .

Former § 108, relating to penalties for use of unsafe steam engines and boilers, was derived from V.S. 1947, § 8194; P.L. § 6609; G.L. § 6326; P.S. § 5510; V.S. § 4700; 1886, No. 86 .

Former § 109, relating to relief in chancery, was derived from V.S. 1947, § 8195; P.L. § 6610; 1933, No. 157 , § 6284; G.L. § 5849; 1912, No. 188 , § 4.

Reclassification. Sections 101-114, added by 1967, No. 291 (Adj. Sess.), § 2, were reclassified by 1969, No. 16 , § 11 as §§ 111-124 of this title.

§§ 111-124. Repealed. 1971, No. 205 (Adj. Sess.), § 7, eff. date, see note set out below.

History

Former §§ 111-124. Former § 111, relating to policy of the State, was derived from 1967, No. 291 (Adj. Sess.), § 2 and reclassified by 1969, No. 16 , § 11. The subject matter is now covered by § 201 of this title.

Former § 112, relating to definitions, was derived from 1967, No. 291 (Adj. Sess.), § 2 and reclassified by 1969, No. 16 , § 11. The subject matter is now covered by § 203 of this title.

Former § 113, relating to responsibilities of employers and owners, was derived from 1967, No. 291 (Adj. Sess.), § 2 and reclassified by 1969, No. 16 , § 11.

Former § 114, relating to inspections and investigations, was derived from 1967, No. 291 (Adj. Sess.), § 2 and reclassified by 1969, No. 16 , § 11. The subject matter is now covered by § 206 of this title.

Former § 115, relating to notice and orders, was derived from 1967, No. 291 (Adj. Sess.), § 2 and reclassified by 1969, No. 16 , § 11.

Former § 116, relating to appeals to the Commissioner, was derived from 1967, No. 291 (Adj. Sess.), § 2 and reclassified by 1969, No. 16 , § 11.

Former § 117, relating to rules, was derived from 1967, No. 291 (Adj. Sess.), § 2 and reclassified by 1969, No. 16 , § 11. The subject matter is now covered by § 204 of this title.

Former § 118, relating to assistance to employers, was derived from 1967, No. 291 (Adj. Sess.), § 2 and reclassified by 1969, No. 16 , § 11.

Former § 119, relating to industrial safety advisory boards, was derived from 1967, No. 291 (Adj. Sess.), § 2 and reclassified by 1969, No. 16 , § 11. The subject matter is now covered by § 229 of this title.

Former § 120, relating to existing rights and remedies and appeals to the Supreme Court, was derived from 1967, No. 291 (Adj. Sess.), § 2 and reclassified by 1969, No. 16 , § 11.

Former § 121, relating to penalties, was derived from 1967, No. 291 (Adj. Sess.), § 2 and reclassified by 1969, No. 16 , § 11. The subject matter is now covered by § 210 of this title.

Former § 122, relating to separability, was derived from 1967, No. 291 (Adj. Sess.), § 2 and reclassified by 1969, No. 16 , § 11.

Former § 123, relating to power to grant exceptions, was derived from 1967, No. 291 (Adj. Sess.), § 2 and reclassified by 1969, No. 16 , § 11. The subject matter is now covered by § 205 of this title.

Former § 124, relating to exemptions, was derived from 1967, No. 291 (Adj. Sess.), § 2 and reclassified by 1969, No. 16 , § 11.

Effective date. 1971, No. 205 (Adj. Sess.), § 8, approved March 31, 1972, provided in part: "This act shall take full effect July 1, 1973 or at an earlier date which the governor may set by executive order, which shall be not sooner than April 1, 1973."

Preservation of rights. 1971, No. 205 (Adj. Sess.), § 5, provided: "The repeal by this act [ 1971, No. 205 (Adj. Sess.)] of any provision of law shall not affect any act done, liability incurred, or any right accrued or vested, or affect, abate or prevent any suit or prosecution pending or to be instituted to enforce any right or penalty or punish for any offense under the authority of any of the repealed laws, nor shall the repeal affect the validity of any contract to which the state, or any agency of the state, is a party in interest."

Subchapter 2. Boilers and Pressure Vessels

History

Elevator Safety Review Board; rulemaking. 2007, No. 153 (Adj. Sess.), § 6e provides: "Notwithstanding the requirement that an emergency rule be made in response to 'imminent peril to the public health, safety or welfare," the elevator safety review board shall by emergency rulemaking pursuant to 3 V.S.A. § 844 adopt rules that set fees as required by 21 V.S.A. § 152(b). Emergency rules shall be filed as soon as possible after notice and an opportunity to be heard by persons who may be affected by them. The Board shall propose a permanent rule on the same subject at the same time that it adopts an emergency rule."

§§ 141-152. Repealed. 1971, No. 205 (Adj. Sess.), § 7, eff. date, see note set out below.

History

Former §§ 141-152. Former §§ 141-152, relating to boilers and pressure vessels, were derived from 1951, No. 181 ; V.S. 1947, §§ 8196-8199; 1945, No. 149 . Section 143 was previously repealed by 1959, No. 329 (Adj. Sess.), § 59, eff. March 1, 1961. The subject matter is now covered by § 241 et seq. of this title.

Effective date. 1971, No. 205 (Adj. Sess.), § 8, approved March 31, 1972, provided in part: "This act shall take full effect July 1, 1973 or at an earlier date which the Governor may set by executive order, which shall be not sooner than April 1, 1973."

Preservation of rights. 1971, No. 205 (Adj. Sess.), § 5, provided: "The repeal by this act [ 1971, No. 205 (Adj. Sess.)] of any provision of law shall not affect any act done, liability incurred, or any right accrued or vested, or affect, abate or prevent any suit or prosecution pending or to be instituted to enforce any right or penalty or punish for any offense under the authority of any of the repealed laws, nor shall the repeal affect the validity of any contract to which the state, or any agency of the state, is a party in interest."

Subchapter 2A. Elevators and Conveyances

§ 141. Purpose; definitions.

  1. The purpose of this subchapter is to assure that elevators and other automated conveyances are correctly and safely installed and operated within the State by authorizing and enforcing rules for the design, installation, operation, and maintenance of automated people conveyances, and by licensing mechanics and inspectors who work on these conveyances.
  2. For the purposes of this subchapter:
    1. "Board" means the Elevator Safety Review Board.
    2. "Certificate of operation" means a document issued by the Department indicating that a conveyance has passed the required safety inspection, and the conveyance may be operated for a year from the date the certificate is issued.
    3. "Commissioner" means the Commissioner of Public Safety or the Commissioner's designee.
    4. "Conditional certificate of operation" means a document issued by the Department that permits a conveyance that is not in compliance with rules adopted under this subchapter, but, after inspection, has been deemed safe for temporary operation to operate for up to 30 days or until the conveyance is in compliance, whichever occurs earlier.
    5. "Conveyance" means an electrically-driven mechanical device that moves people or materials vertically, and includes elevators, escalators, platform lifts and stairway chairlifts.
    6. "Department" means the Department of Public Safety.
    7. "Elevator inspector" means an individual who is licensed by the Commissioner to perform safety inspections of newly installed and existing conveyances.
    8. "Elevator mechanic" means an individual who is licensed by the Commissioner to erect, construct, install, alter, service, repair, and maintain conveyances.
    9. "Public building" has the same meaning as that term is defined in 20 V.S.A. § 2730 .
    10. "Lift mechanic" means an individual who is licensed by the Commissioner to erect, construct, install, alter, service, repair, and maintain platform lifts and stairway chairlifts.

      Added 2001, No. 60 , § 1, eff. June 16, 2001; amended 2001, No. 151 (Adj. Sess.), § 44b, eff. June 27, 2002; 2005, No. 8 , § 6, eff. April 25, 2005.

History

Amendments--2005. Subdivs. (b)(3) and (b)(6): Substituted "public safety" for "labor and industry".

Subdiv. (b)(9): Substituted "2730 of Title 20" for "251a of this title".

Amendments--2001 (Adj. Sess.) Subdiv. (b)(10): Added.

§ 142. Conveyances regulated.

  1. This subchapter regulates the design, construction, operation, inspection, testing, maintenance, alteration, and repair of the following conveyances and associated parts that are installed in or on a public building:
    1. Hoisting and lowering mechanisms equipped with a car or platform, that moves between two or more landings, including:
      1. Elevators.
      2. Platform lifts and stairway chairlifts.
      3. Power-driven stairways.
      4. Escalators.
    2. Hoisting and lowering mechanisms equipped with a car that serves two or more landings and is designed to carry material, not people, but not including dumbwaiters.
  2. This subchapter does not cover the conveyances that are regulated by the Vermont Tramway Board or by the rules of the Vermont Occupational and Safety Administration, or by the Federal Mine Safety and Health Act, 30 U.S.C.A. § 801 et seq.

    Added 2001, No. 60 , § 1, eff. June 16, 2001.

§ 143. License required.

No person shall erect, construct, wire, alter, replace, or maintain any conveyance located in any public building in this State unless the person is licensed as an elevator mechanic, except that person who is licensed as a lift mechanic may erect, construct, wire, alter, replace, or maintain any conveyance located in any public building. An apprentice or helper may perform any of the activities described in this section only when a mechanic licensed under this chapter is physically present and is immediately available to direct and supervise that apprentice or helper.

Added 2001, No. 60 , § 1, eff. July 1, 2002; amended 2001, No. 151 (Adj. Sess.), § 44d, eff. June 27, 2002; 2005, No. 8 , § 6a, eff. April 25, 2005.

History

Amendments--2005. Added the second sentence.

Amendments--2001 (Adj. Sess.) Added the language beginning "except that a person who is a lift mechanic may erect, construct, wire, alter, replace or maintain any platform lift or stairway chairlift in any public building".

Effective date. 2001, No. 60 , § 4(2)(A) provides that this section shall take effect on July 1, 2002.

§ 144. Elevator Safety Review Board; members; duties.

  1. The Elevator Safety Review Board is established within the Department, and shall consist of seven members, one of whom shall be the Commissioner or designee, one of whom shall be the Commissioner of Labor or designee, and five members to be appointed by the Governor as follows: one representative from a major elevator manufacturing company; one representative from an elevator servicing company; an owner or manager of a multistoried building, in which a conveyance is installed; an elevator inspector; and an individual who actually installs, maintains, and repairs conveyances. The members appointed by the Governor shall be appointed for staggered terms of three years, and shall be entitled to compensation and expenses as provided in 32 V.S.A. § 1010 .
  2. The Board shall:
    1. Adopt rules regarding the following:
      1. Safety standards for the operation, maintenance, servicing, construction, alteration, installation, and inspection of conveyances covered by this subchapter. At a minimum, the Board shall adopt rules that include the Safety Code for Elevators and Escalators, ASME A17.1; the Safety Code for Existing Elevators and Escalators, ASME A17.3; the Safety Standards for Platform Lifts and Stairway Chairlifts, ASME A18.1; and Standard for the Qualification of Elevator Inspectors, ASME QEI-1. The Board shall amend the rules to include any changes or amendments to these standards within six months after the effective date of the standard changes. The Board may adopt rules to modify these standards as the Board deems necessary.
      2. Any other rule necessary to implement this subchapter.
    2. Grant variances, provided the variance provides an equal or greater level of public safety. The decision of the Board in regard to an application for a variance shall be final.
  3. The Board may:
    1. adopt rules for temporary elevator mechanic licenses in the event of an emergency; and
    2. contract with a national testing service to develop and administer licensing examinations.

      Added 2001, No. 60 , § 1, eff. June 16, 2001; amended 2007, No. 153 (Adj. Sess.), § 6a.

History

2007. In subsec. (a), corrected the spelling of the word "conveyance".

Amendments--2007 (Adj. Sess.). Subsec. (a): Substituted "seven members" for "five members" in two places, and inserted "one of whom shall be the Commissioner of Labor or the Commissioner of Labor's designee" and "an elevator inspector" in the first sentence.

Appointment of members; adoption of rules 2001, No. 60 , § 4(1) provides, under this section "members shall be appointed no later than October 1, 2001, and rules shall be adopted by the board no later than January 15, 2002".

§ 145. Elevator mechanic license and lift mechanic license.

An individual shall submit to the Commissioner a written application for an elevator mechanic or a lift mechanic license on a form provided by the Board, accompanied by the required fee. A license shall be granted to an applicant who demonstrates to the satisfaction of the Board that the applicant meets the qualifications established by the Board. An individual who holds an elevator mechanic license may work on platform lifts and stairway chairlifts without a lift mechanic license. An individual who holds only a lift mechanic license may not work on elevators without an elevator mechanic license.

Added 2001, No. 60 , § 1, eff. June 16, 2001; amended 2001, No. 151 (Adj. Sess.), § 44c, eff. June 27, 2002.

History

Amendments--2001 (Adj. Sess.) Added "and lift mechanic license" to the catchline, inserted "or lift mechanic" following "elevator mechanic" in the first sentence, and added the third and fourth sentences.

§ 146. Elevator inspector license.

An individual shall submit to the Commissioner a written application for an elevator inspector license on a form provided by the Board, accompanied by the required fee. A license shall be granted to an applicant who demonstrates to the satisfaction of the Board that the applicant meets the qualifications established by the Board.

Added 2001, No. 60 , § 1, eff. June 16, 2001.

§ 147. Examination not required.

A license for elevator mechanic or inspector shall be issued to an applicant, upon application and payment of the required fee, or to an individual who holds a comparable valid license or certification from a state that has equal or more stringent requirements.

Added 2001, No. 60 , § 1, eff. June 16, 2001.

§ 148. Issuance and renewal of licenses; fees.

  1. A license issued by the Board shall be valid for two years. The Board may renew a license, provided the applicant submits a written application for renewal accompanied by the required fee prior to expiration of the license.
  2. Applicants for license renewal shall provide evidence, satisfactory to the Board, of completion of eight hours of instruction approved by the Board, designed to ensure the continued qualifications of the applicant.
  3. License and renewal fees are as follows:
    1. Elevator mechanic license: $75.00.
    2. Elevator inspector license: $150.00.
    3. Lift mechanic license: $50.00.

      Added 2001, No. 60 , § 1, eff. June 16, 2001; amended 2001, No. 151 (Adj. Sess.), § 44e, eff. June 27, 2002.

History

Amendments--2001 (Adj. Sess.) Subdiv. (c)(3): Added.

§ 149. Civil penalties; suspension; revocation of license.

After notice and hearing, the Board may suspend or revoke a license and assess administrative penalties pursuant to section 156 of this title for any of the following reasons:

  1. fraud or deceit in obtaining the license;
  2. failure to notify the Department and the owner or lessee of a conveyance of noncompliance of the conveyance with the standards adopted under this subchapter; or
  3. violation of any provisions of this subchapter.

    Added 2001, No. 60 , § 1, eff. July 1, 2002.

History

Effective date. 2001, No. 60 , § 4(2)(B) provides that this section shall take effect on July 1, 2002.

§ 150. Registration of conveyances.

  1. The owner or lessee of a conveyance shall register the conveyance with the Department, pursuant to rules adopted by the Board. The registration shall include the type, rated load and speed, manufacturer, location, purpose, date of installation, and any additional information the Board may require.
  2. The Commissioner may, after notice and hearing, assess an administrative penalty of no more than $1,000.00 against a building owner or lessee who fails to register a conveyance as required by this subchapter.

    Added 2001, No. 60 , §§ 1, 3a, eff. date see notes set out below.

History

Amendments--2001. Subsec. (b): Deleted "30 days after being directed to do so by the commissioner".

Effective date. 2001, No. 60 , § 4(3) provides that subsec. (a) of this section shall take effect on March 1, 2002 and subsec. (b) of this section shall take effect on March 1, 2003.

Effective date of amendments--2001. 2001, No. 60 , § 4(4), provided that the amendment to subsec. (b) by section 3a of this act shall take effect January 1, 2006.

§ 151. Permits.

  1. No conveyance shall be erected, constructed, installed, or altered in a public building unless a permit has been obtained from the Department before work is commenced. Before a material alteration, as defined by rule, is begun, the conveyance shall conform to rules adopted by the Board regulating the alteration. A copy of the permit shall be kept at the construction site at all times while work is in progress.
  2. Each application for a permit shall be accompanied by a fee of $25.00, and copies of specifications and accurately scaled and fully dimensioned plans that clearly indicate location of the elevator in the building; the location of the machinery room and the equipment to be installed, relocated, or altered; all structural supporting members, including foundations; and a specification of all materials to be used and all loads to be supported or conveyed. The plans and specifications shall be sufficiently complete to illustrate all details of construction and design.
  3. A permit may be revoked for any of the following reasons:
    1. a false statement or a misrepresentation of a material fact in the application, plans, or specifications on which the permit was based;
    2. failure of the permittee to perform work in accordance with the conditions of the permit, the provisions of the application, plans, or specifications, or with the standards required by this subchapter; or
    3. failure of the permit holder to comply with any order issued pursuant to section 154 of this title.
  4. Work shall commence within six months after the date of issuance of a permit, or within a shorter period of time as the Commissioner may specify in the permit.
  5. A permit shall expire if work is suspended or abandoned for more than 60 days after work has begun, or a shorter period of time as the Commissioner may specify in the permit. For good cause shown, the Commissioner may extend this period.

    Added 2001, No. 60 , § 1, eff. July 1, 2002.

History

Effective date. 2001, No. 60 , § 4(2)(C) provides that this section shall take effect on July 1, 2002.

§ 152. New installations; annual inspections and registrations.

  1. A new conveyance shall not be placed in operation until it has been inspected by an elevator inspector other than the installer, and a certificate of operation has been issued.
  2. Every conveyance subject to this subchapter shall be inspected annually by an elevator inspector who may charge a fee for the service as established by the Board by rule. Rules adopted by the Board under this subsection shall take into account the degree of difficulty required by the inspection, the frequency of use of the conveyance, and the mode of operation of the conveyance, such as cable, traction, hydraulic, light use, or platform lift. The inspector shall notify the Department if a conveyance is found to be in violation of this subchapter or any rule adopted under this subchapter.
  3. An elevator inspector shall issue a certificate of operation after the inspector has inspected a new or existing conveyance, and has determined that the conveyance is in compliance with this subchapter. A certificate of operation shall be renewed annually. An owner of a conveyance shall ensure that the required inspections and tests are performed at intervals that comply with rules adopted by the Board. Certificates of operation shall be clearly displayed on or in each conveyance.
  4. The Department may issue a conditional certificate of operation for a conveyance that is not in complete compliance, provided the conveyance has been inspected and determined to be safe for temporary operation. This conditional certificate of operation shall permit a conveyance to operate for no more than 180 days or until the conveyance is in compliance, whichever occurs first.
  5. The inspector shall submit $25.00 of the fee charged for each inspection to the Department for each certificate of operation issued under this subchapter.
  6. As established by the Board by rule, an inspector may charge a fee not to exceed $250.00 for each inspection, and this fee shall be subject to the provisions of 32 V.S.A. chapter 7, subchapter 6.
  7. [Repealed.]

    Added 2001, No. 60 , § 1, eff. July 1, 2002; amended 2007, No. 153 (Adj. Sess.), § 6b.

History

Revision note. In subsec. (f) substituted "32 V.S.A. chapter 7, subchapter 6" for "subchapter 6 of chapter 7 of Title 32" to conform reference to V.S.A. style.

2007. Subsec. (g), pertaining to an interim inspection fee not to exceed $100.00, was repealed effective November 1, 2008, the effective date of administrative rules implementing subsection (g).

Amendments--2007 (Adj. Sess.). Subsec. (a): Inserted "other than the installer" following "elevator inspector".

Subsec. (b): Added "who may charge a fee for the service as established by the board by rule" in the first sentence and rewrote the second sentence.

Subsec. (c): Deleted "or in each machinery room" at the end of the subsection.

Subsec. (d): Substituted "shall permit" for "permits" and "180 days" for "30 days" in the last sentence.

Subsec. (e): Inserted "of the fee charged for each inspection" following "$25.00".

Subsecs. (f), (g): Added.

Effective date. 2001, No. 60 , § 4(2)(D) provides that this section shall take effect on July 1, 2002.

Repeal. 2007, No. 153 (Adj. Sess.), § 6d provides: "21 V.S.A. § 152(g) (inspector fee cap of $100.00) shall be repealed on the effective date of rules adopted pursuant to 21 V.S.A. § 152."

§ 153. Insurance requirements; license.

A licensed elevator inspector shall submit to the Department an insurance policy, or certified copy issued by an insurance company authorized to do business in Vermont, that provides general liability coverage in an amount to be determined, by rule.

Added 2001, No. 60 , § 1, eff. June 16, 2001.

§ 154. Enforcement.

  1. The Commissioner may contract with elevator inspectors to perform random on-site inspections and tests on existing conveyances, conduct periodic inspections and tests to ensure satisfactory performance by licensed individuals, and develop public awareness programs.
  2. If the Commissioner finds a violation of this subchapter, the Commissioner may:
    1. order the owner of the premises or the owner's agent and the individuals performing the work to correct or remove the violation;
    2. suspend or retract the permit; or
    3. order the owner, a public utility, or a private party furnishing electricity to the installation not to connect or disconnect electrical energy from the conveyance until the violation is corrected.

      Added 2001, No. 60 , § 1, eff. June 16, 2001.

§ 155. Liability.

This subchapter shall not be construed to relieve any person that owns, operates, controls, maintains, erects, constructs, installs, alters, inspects, tests, or repairs any elevator or other conveyance covered by this subchapter from liability for damages to persons or property caused by any defect in any conveyance.

Added 2001, No. 60 , § 1, eff. June 16, 2001.

§ 156. Penalty.

  1. Any owner or lessee who violates any of the provisions of this subchapter shall be fined not more than $1,500.00 for each occurrence.
  2. The Commissioner may, after notice and hearing, assess an administrative penalty of not more than $1,000.00 for each violation of this subchapter.
  3. Any person who erects, constructs, wires, alters, replaces, or maintains any conveyance located in any public building in this State without being licensed as required by this subchapter, or who employs an unlicensed person to perform this work, shall be fined not more than $1,000.00 for each offense.

    Added 2001, No. 60 , § 1, eff. July 1, 2002.

History

Effective date. 2001, No. 60 , § (4)(2)(E) provides that this section shall take effect on July 1, 2002.

§ 157. Elevator Safety Fund; creation.

The Elevator Safety Fund is created for the purpose of funding the Elevator Safety Inspection and Licensing Program. All revenues from fees collected for licensing elevator mechanics and inspectors, and issuing permits and certificates of operation, shall be deposited in the Fund. The Commissioner, pursuant to an appropriation from the Fund, shall request disbursements from the Fund by the Commissioner of Finance and Management. The Fund shall be maintained by the State Treasurer and shall be managed in accordance with the provisions of 32 V.S.A. chapter 7, subchapter 5.

Added 2001, No. 60 , § 1, eff. June 16, 2001.

Subchapter 3. Reports

§§ 191, 192. Repealed. 1971, No. 205 (Adj. Sess.), § 7, eff. date, see note set out below.

History

Former §§ 191, 192. Former § 191, relating to furnishing information and reports, was derived from V.S. 1947, § 8200; 1945, No. 151 , § 2; P.L. § 6611; 1933, No. 157 , § 6285; G.L. § 5848; 1917, No. 171 , § 4; 1917, No. 254 , § 5698.

Former § 192, relating to cooperation of municipal officers, was derived from V.S. 1947, § 8201; P.L. § 6612; G.L. § 5850; 1917, No. 171 , § 4; 1917, No. 254 , § 5701; 1912, No. 188 , § 6.

Effective date. 1971, No. 205 (Adj. Sess.), § 8, approved March 31, 1972, provided in part: "This act shall take full effect July 1, 1973 or at an earlier date which the Governor may set by executive order, which shall be not sooner than April 1, 1973."

Preservation of rights. 1971, No. 205 (Adj. Sess.), § 5, provided: "The repeal by this act [ 1971, No. 205 (Adj. Sess.)] of any provision of law shall not affect any act done, liability incurred, or any right accrued or vested, or affect, abate or prevent any suit or prosecution pending or to be instituted to enforce any right or penalty or punish for any offense under the authority of any of the repealed laws, nor shall the repeal affect the validity of any contract to which the State, or any agency of the State, is a party in interest."

Subchapter 4. General Provisions

Cross References

Cross references. Restrictions on smoking in public places, see 18 V.S.A. § 1741 et seq.

ANNOTATIONS

1. Federal decisions.

Federal circuit courts' opinions interpreting the Federal Occupational Safety and Health Act, although not binding upon Vermont Supreme Court, are instructive in light of the genesis of the Vermont Occupational Safety and Health Act, allowed by and modeled on the federal act, and the substantial similarity between the two acts. Green Mountain Power Corp. v. Commissioner of Labor & Industry, 136 Vt. 15, 383 A.2d 1046 (1978).

§ 201. Occupational policy.

  1. It is the policy of the State of Vermont that in their employment all persons shall be provided by their employers with safe and healthful working conditions at their work place, and that insofar as practicable an employee shall not experience diminished health, functional capacity, or life expectancy as a result of his or her work experience.
  2. It is also the policy of the State that practices and procedures prescribed by an employer for performance of work or duties by his or her employees shall not be insofar as practicable, dangerous to the life, body, or well being of the employees.
  3. It is the legislative intent that:
    1. The provisions of the Occupational Safety and Health Act of 1970, as enacted by the Congress of the United States of America, which may be administered by a State agency, shall be administered and enforced in this State, by the State.
    2. To effectuate the policy of the State, standards promulgated under the Occupational Safety and Health Act of 1970, enacted by Congress, and as amended at any time, when applicable to employment in the State of Vermont, shall be prescribed in rules made under this subchapter.
    3. The State of Vermont shall cooperate with the appropriate federal agencies in carrying out the purposes of the Occupational Safety and Health Act of 1970 and the VOSHA Code of the State.

      Added 1971, No. 205 (Adj. Sess.), § 1; amended 2013, No. 96 (Adj. Sess.), § 126.

History

Reference in text. The "Occupational Safety and Health Act of 1970", referred to in subsec. (c), is codified as 29 U.S.C. § 651 et seq.

Amendments--2013 (Adj. Sess.). Subsec. (a): Substituted "an employee shall not experience" for "no employee shall suffer" following "practicable".

Effective date. 1971, No. 205 (Adj. Sess.), § 8, approved March 31, 1972, provided in part: "This act shall take full effect July 1, 1973 or at an earlier date which the governor may set by executive order, which shall be not sooner than April 1, 1973."

ANNOTATIONS

1. Tort liability of state.

State is immune from a tort suit claiming damages for injuries resulting from an allegedly negligent inspection of a private workplace pursuant to the Vermont Occupational Safety and Health Act, because a private analog does not exist for the State's regulatory enforcement activities; when the State inspects a private business, it does so to police the employer's compliance with the law and to punish those employers that have not complied with the law, not to render services to the employer by assuming the employer's duty toward its employees. Andrew v. State, 165 Vt. 252, 682 A.2d 1387 (1996).

Cited. In re Weyerhaeuser Co., 132 Vt. 121, 315 A.2d 446 (1974); Green Mountain Power Corp. v. Commissioner of Labor & Industry, 136 Vt. 15, 383 A.2d 1046 (1978); Lafond v. Department of Social & Rehabilitation Servs., 167 Vt. 407, 708 A.2d 919 (1998).

§ 202. General purpose.

The purpose of this chapter is to provide efficient implementation of the policy of the State expressed in section 201 of this title.

Added 1971, No. 205 (Adj. Sess.), § 1.

History

Effective date. For effective date of this section, see note set out under § 201 of this title.

ANNOTATIONS

Cited. Green Mountain Power Corp. v. Commissioner of Labor & Industry, 136 Vt. 15, 383 A.2d 1046 (1978).

§ 203. Definitions.

As used in this chapter:

  1. "Act" means the Occupational Safety and Health Act of 1970, enacted by the Congress of the United States of America, and rules made thereunder, as amended at any time.
  2. "Commissioner" means the Commissioner of Labor or designee.
  3. "Department" means the Department of Labor.
  4. "Director" means the Director of Occupational Health.
  5. "Division" means the Division of Occupational Health.
  6. "Employee" means any person engaged in service to an employer for wages, salary or other compensation, excluding an independent contractor.
  7. "Employer" means a person, as hereinafter defined, who employs one or more persons.
  8. "Person" means a natural person, corporation, partnership, trust, society, club, association, or other organization, including municipalities and the State and its instrumentalities.
  9. "Place of employment" means any place where an employee is engaged in performance of his or her work or duties, or which is used in connection with an employee's employment.  It includes structures, buildings, machinery, equipment, tools, appliances, and materials used in connection with the employment.  It also includes land and premises where an employer is carrying on any activity or business involving the use of one or more employees.
  10. "Premises" means land and the structures thereon which contains a place of employment as herein defined.
  11. "Rule" means a rule or regulation.
  12. "VOSHA Code" means subchapters 4 and 5 of this chapter and 18 V.S.A. chapter 28, and the rules adopted thereunder.
  13. "Review Board" means the Occupational Safety and Health Review Board.
  14. "Secretary of Labor" means the Secretary of Labor of the United States of America.
  15. "Secretary" means the Secretary of Human Services.

    Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 17; 1979, No. 121 (Adj. Sess.), § 3; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Reference in text. The "Occupational Safety and Health Act of 1970", referred to in subdiv. (1), is codified as 29 U.S.C. § 651 et seq.

2016. In subdiv. (12), substituted "18 V.S.A. chapter 28" for "chapter 28 of Title 18" to conform reference to V.S.A. style.

Amendments--2005 (Adj. Sess.) Subdiv. (2): Substituted "Commissioner of Labor" for "commissioner of labor and industry".

Subdiv. (3): Substituted "Department of Labor" for "department of labor and industry".

Amendments--1979 (Adj. Sess.). Subdiv. (2): Added "or his designee" following "industry".

Amendments--1973 (Adj. Sess.). Subdiv. (15): Added.

Effective date. For effective date of this section, see note set out under § 201 of this title.

§ 204. Rules and procedure.

  1. 3 V.S.A. chapter 25, relating to administrative procedure, shall apply to this chapter and the VOSHA Code.
  2. All or part of a printed publication of standards or rules, including standards promulgated under the Act, may be made a rule or part of a rule under this chapter or the VOSHA Code, by reference in the rule to the printed publication by its title and where it may be procured at the time the rule is promulgated under this chapter.

    Added 1971, No. 205 (Adj. Sess.), § 1.

History

2016. In subsec. (b), deleted "but not limited to" following "including" in accordance with 2013, No. 5 , § 4.

Effective date. For effective date of this section, see note set out under § 201 of this title.

§ 205. Variances.

  1. In cases involving a work place, the Secretary of Human Services, in the case of health standards, and the Commissioner, in the case of safety standards, may grant a variance from a standard or any provision thereof promulgated in a rule, under the same terms, conditions, and criteria as the federal Secretary of Labor may under sections 6(b)(6) and (d) of the Act.
  2. The Secretary of Human Services, in the case of health standards, and the Commissioner, in the case of safety standards, may grant a variance, tolerance, or exemption to and from any or all provisions of the VOSHA Code as found necessary and proper to avoid serious impairment of the national defense.  Such action shall not be taken without the written consent of a federal official authorized to make such variation, tolerance or exemption to and from any or all provisions of the Act.

    Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 8.

History

Amendments--1973 (Adj. Sess.). Deleted former subsec. (b) and redesignated former subsec. (c) as subsec. (b).

Effective date. For effective date of this section, see note set out under § 201 of this title.

§ 206. Inspections and investigations.

  1. The Commissioner or the Director, or their agents, may enter upon a premise, upon presenting appropriate credentials to the occupant, at reasonable times, for the purpose of inspecting the premises within reasonable limits and in a reasonable manner, to determine whether the provisions of the VOSHA Code and this chapter and the rules adopted thereunder are being observed.  If entry is refused, the Commissioner or the Director may apply to a Superior judge for an order to enforce the rights given to the Commissioner and the Director and their agents under this section.
  2. In making inspections and investigations, the Commissioner or the Director, as the case may be, may require the attendance and testimony of witnesses and the production of evidence under oath.  Witnesses shall be paid the same fees and mileage as are paid witnesses in the Superior courts in criminal cases.  In case of a contumacy, failure, or refusal of any person to obey such an order, any Superior Court within the jurisdiction of which the person is found or resides or transacts business, upon the application by the Commissioner, shall have jurisdiction to issue to the person an order requiring him or her to appear to produce evidence if, as, and when so ordered, and to give testimony relating to the matter under investigation or in question.  Any failure to obey such order of the court may be punished by the court as a contempt thereof.
  3. No person shall give advance notice of any inspection under the VOSHA Code, without prior authority of the Commissioner or the Director, which shall be in writing.
  4. Under the VOSHA Code, the Secretary of Human Services and the Commissioner shall adopt rules regarding inspections and investigations to conform with the provisions and requirements of the Act.
  5. Subject to regulations issued by the Commissioner or Secretary, a representative of the employer and a representative authorized by his or her employees shall be given an opportunity to accompany the Commissioner or Secretary or his or her authorized agent during the physical inspection of any workplace under subsection (a) of this section for the purpose of aiding such inspection.  Where there is no authorized employee representative, the Commissioner or Secretary or his or her authorized agent shall consult with a reasonable number of employees concerning matters of safety and health in the workplace.
  6. Any employees or representative of employees who believes that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Commissioner or Secretary or his or her authorized agent of the violation or danger.  The notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employees or representative of employees.  A copy of the notice shall be provided the employer or his or her agent no later than at the time of inspection, except that, upon the request of the person giving such notice, his or her name and the names of individual employees referred to therein shall not appear in the copy or on any record published, released, or made available by the Commissioner or Secretary.  If upon receipt of the notification the Commissioner or Secretary determines there are reasonable grounds to believe that a violation or danger exists, he or she shall make a special inspection in accordance with the provisions of this section as soon as practicable to determine if a violation or danger exists.  If the Commissioner or Secretary determines there are no reasonable grounds to believe that a violation or danger exists, he or she shall notify the employees or representative of the employees in writing of such determination.
  7. Prior to or during any inspection of a workplace, any employees or representative of employees employed in such workplace may notify the Commissioner or Secretary or any agent of the Commissioner or Secretary responsible for conducting the inspection, in writing, of any violation of this Code which they have reason to believe exists in such workplace.  The Commissioner shall, by regulation, establish procedures for informal review of any refusal by a representative of the Commissioner to issue a citation with respect to any such alleged violation and shall furnish the employees or representative of employees requesting such review a written statement of the reasons for the Commissioner's final disposition of the case.

    Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1973, No. 214 (Adj. Sess.), § 9.

History

Revision note. In the third sentence of subsec. (b), substituted "Superior" for "county" preceding "court" pursuant to 1973, No. 193 (Adj. Sess.), § 3. See note set out under § 71 of Title 4.

Amendments--1973. Subsec. (b): Act No. 193 substituted "Superior" for "county" preceding "courts" in the second sentence.

Act No. 214 added the third and fourth sentences.

Subsecs. (e)-(g): Added by Act No. 214.

Effective date. For effective date of this section, see note set out under § 201 of this title.

Cross References

Cross references. Citation for violation of VOSHA Code, see § 225 of this title.

Employee rights, see § 231 of this title.

Imminent danger, see § 208 of this title.

Inspection of boilers and pressure vessels, see 20 V.S.A. § 2881 et seq.

Orders regarding dangerous substances, see 20 V.S.A. § 2802.

Orders to repair, rehabilitate or remove structures, see 20 V.S.A. § 2733.

Protection of trade secrets, see § 207 of this title.

Witness fees in criminal cases, see 32 V.S.A. § 1552.

§ 207. Trade secrets.

All information reported to or otherwise obtained by the Commissioner or the Director, or their agents, in connection with any inspection or proceeding under this chapter or the VOSHA Code, which contains or might reveal a trade secret referred to in 18 U.S.C. § 1905 shall be considered confidential, except that such information may be disclosed to other officers or employees concerned in carrying out the provisions of this chapter or the VOSHA Code. In any proceeding, the Commissioner, Director, Board, or court shall issue such orders as may be appropriate to protect the confidentiality of trade secrets.

Added 1971, No. 205 (Adj. Sess.), § 1.

History

2016. Substituted "18 U.S.C. § 1905" for "section 1905 of Title 18 of the United States Code" to conform reference to V.S.A. style.

Effective date. For effective date of this section, see note set out under § 201 of this title.

Cross References

Cross references. Commercial ethical standards for trade secrets, see 9 V.S.A. § 4601 et seq.

§ 208. Imminent danger.

  1. Whenever the Commissioner finds that any workplace is in violation of any portion of the VOSHA Code or this chapter and that the violation creates a dangerous condition that can be reasonably expected to cause imminent death or serious physical harm, the Commissioner may order the workplace or any portion of the workplace to be immediately closed or order that steps be taken to avoid, correct, or remove the imminently dangerous conditions. The Commissioner may permit the presence of individuals necessary to avoid, correct, or remove the imminent danger, or to maintain the capacity of a continuous process operation to resume normal operations without complete cessation of operations, or where a cessation of operations is necessary, to permit it to be accomplished in a safe and orderly manner. On two business days' notice to the Commissioner, an order issued under this section may be contested by filing a petition in Superior Court requesting dissolution or modification of the order. In that event, the court shall proceed to hear and to make an expeditious determination.
  2. In the event the court vacates or otherwise invalidates the Commissioner's order based upon a finding of willful misconduct or gross negligence, the court may determine the amount of damages suffered by the employer on account of the issuance of the order and shall enter judgment in that amount for the employer.
  3. Any employer who violates an order of the Commissioner issued pursuant to subsection (a) of this section shall be fined not more than $5,000.00 per day.
  4. Notice of orders issued under this section shall be served by certified mail with return receipt requested or in person to all parties who have a recorded interest in the property where land records for the property are recorded, including owners, tenants, mortgagees, attaching creditors, lien holders, and public utilities or water companies serving the premises.

    Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 10; 1985, No. 150 (Adj. Sess.), § 1; 2017, No. 11 , § 50.

History

Revision note. In subsec. (c), substituted "subsection (a) of this section" for "subsection (a)" to conform reference to V.S.A. style.

Amendments--2017. Subsec. (a): Inserted "business" preceding "days'" near the beginning of the third sentence.

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1973 (Adj. Sess.). Subsec. (a): Designated existing provisions of section as subsec. (a) and added subsec. (b).

Effective date. For effective date of this section, see note set out under § 201 of this title.

§ 209. Appeals.

Except as to matters provided for in subchapter 5 of this chapter, a person aggrieved by an order or action of the Commissioner under this chapter, or a rule thereunder, may appeal to the Superior Court for the order or action within 20 days after the order is issued or the action is taken. In the Superior Court, the matter will be heard de novo. Appeal may be taken to the Supreme Court from the Superior Court. The Superior Court for the county within which the appellant resides or has a place of business shall have jurisdiction.

Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Amendments--1973 (Adj. Sess.). Substituted "superior" for "county" preceding "court" wherever it appeared.

Effective date. For effective date of this section, see note set out under § 201 of this title.

ANNOTATIONS

1. Particular cases.

Defendant Vermont Department of Labor and Industry wrongly interpreted the Superior Court's statement faulting plaintiffs for failure to proceed under the rule governing review of governmental action as a ruling that plaintiffs' claims were brought outside the statute of limitations. The only time bar raised by defendant in the trial court was with respect to plaintiffs' challenge under the statute governing appeals from actions taken by the Commissioner of Labor and Industry; the defendant failed to address any applicable bar to plaintiffs' mandamus claims, and responded to these claims only in terms of its lack of a mandatory duty. Thus, this issue was not addressed on appeal. Alger v. Department of Labor & Industry, 181 Vt. 309, 917 A.2d 508 (2006).

§ 210. Penalties.

  1. Upon issuance of a citation under this chapter, the Review Board is authorized to assess civil penalties for grounds provided in this subsection. In assessing civil penalties, the Review Board shall follow to the degree practicable the federal procedures prescribed in rules adopted under the Act. The Review Board shall give due consideration to the appropriateness of the penalty with respect to the size of the business or operation of the employer being assessed, the gravity of the violation, the good faith of the employer, and the history of previous violations. Civil penalties shall be paid to the Commissioner for deposit with the State Treasurer, and may be recovered in a civil action in the name of the State of Vermont brought in any court of competent jurisdiction. The Commissioner shall not reduce the assessed penalties in any fiscal year by more than 50 percent.
    1. Any employer that willfully or repeatedly violates the requirements of this Code or any standard or rule adopted, or order issued pursuant to this Code may be assessed a civil penalty of not more than $126,749.00 for each violation, but not less than $5,000.00 for each willful violation.
    2. Any employer that has received a citation for a serious violation of the requirements of this Code, or any standard or rule adopted, or order issued pursuant to this Code, shall be assessed a civil penalty of up to $12,675.00 for each violation.
    3. Any employer that has received a citation for a violation of the requirements of this Code, or any standard or rule adopted, or order issued pursuant to this Code, if the violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $12,675.00 for each such violation.
    4. Any employer that fails to correct a violation for which a citation has been issued within the period permitted for its correction, which period shall not begin to run until the date of the final order of the Review Board, in the case of any review proceeding under section 226 of this title initiated by the employer in good faith and not solely for delay or avoidance of penalties, may be assessed a civil penalty of not more than $12,675.00 for each day during which the failure or violation continues.
    5. Any employer that willfully violates any standard or rule adopted, or order issued pursuant to this Code, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $126,749.00 or by imprisonment for not more than one year, or by both.
    6. Any person who gives advance notice of any inspection to be conducted under this Code, without authority from the Commissioner or Director or designees, shall, upon conviction, be punished by a fine of not more than $ 1,000.00 or by imprisonment for not more than six months, or by both.
    7. Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this Code shall, upon conviction, be punished by a fine of not more than $10,000.00 or by imprisonment for not more than six months, or by both.
    8. Any employer that violates any of the posting requirements, as prescribed under the provisions of this Code, shall be assessed a civil penalty of up to $12,675.00 for each violation.
      1. As provided under the federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 and the Act, the penalties provided in subdivisions (1), (2), (3), (4), (5), and (8) of this subsection (a) shall annually, on January 1, be adjusted to reflect the increase in the Consumer Price Index, CPI-U, U.S. City Average, not seasonally adjusted, as calculated by the U.S. Department of Labor or successor agency for the 12 months preceding the previous December 1. (9) (A) As provided under the federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 and the Act, the penalties provided in subdivisions (1), (2), (3), (4), (5), and (8) of this subsection (a) shall annually, on January 1, be adjusted to reflect the increase in the Consumer Price Index, CPI-U, U.S. City Average, not seasonally adjusted, as calculated by the U.S. Department of Labor or successor agency for the 12 months preceding the previous December 1.
      2. The Commissioner shall calculate and publish the adjustment to the penalties on or before January 1 of each year, and the penalties shall apply to fines imposed on or after that date.
  2. For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition that exists, or from one or more practices, means, methods, operations, or processes that have been adopted or are in use, in such place of employment unless the employer did not and could not, with the exercise of reasonable diligence, know of the presence of the violation.

    Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 11; 1985, No. 150 (Adj. Sess.), § 2; 1991, No. 23 , § 1, eff. May 3, 1991; 2003, No. 66 , § 74; 2017, No. 69 , § D.1, eff. June 8, 2017.

History

Amendments--2017. Subsec. (a): Substituted "adopted" for "promulgated" preceding "under the Act" in the second sentence.

Subdivs. (a)(1)-(a)(5) and (a)(8): Amended generally.

Subdiv. (a)(9): Added.

Amendments--2003. Subsec. (a): Added last sentence.

Amendments--1991. Subdiv. (a)(1): Substituted "$70,000.00" for "$20,000.00" preceding "for each violation" and added "but not less than $5,000,00 for each willful violation" thereafter.

Subdiv. (a)(2): Substituted "$7,000.00" for "$2,000.00".

Subdiv. (a)(3): Substituted "$7,000.00" for "$1,000.00".

Subdiv. (a)(8): Substituted "$7,000.00" for "$1,000.00".

Amendments--1985 (Adj. Sess.). Subdiv. (a)(1): Substituted "$20,000.00" for "$10,000.00".

Subdiv. (a)(2): Substituted "$2,000.00" for "$1,000.00" preceding "for each" and deleted "such" thereafter.

Subdiv. (a)(4): Substituted "$2,000.00" for "$1,000.00" preceding "for each day during which" and "the" for "such" thereafter.

Subdiv. (a)(5): Substituted "$20,000.00" for "$10,000.00".

Amendments--1973 (Adj. Sess.). Amended section generally.

Effective date. For effective date of this section, see note set out under § 201 of this title.

ANNOTATIONS

Cited. Green Mountain Power Corp. v. Commissioner of Labor & Industry, 136 Vt. 15, 383 A.2d 1046 (1978).

Subchapter 5. Occupational Safety and Health

Cross References

Cross references. Occupational health generally, see 18 V.S.A. § 1415 et seq.

§ 221. State plan and cooperation.

The State of Vermont desires to assume responsibility for the development and enforcement of occupational safety and health standards within the State. To that end the Commissioner shall submit plans and reports to the appropriate federal official or agency, under the provisions of the Occupational Safety and Health Act of 1970 (PL. 91-596), enacted by the Congress of the United States of America. The Department and the Division shall cooperate with the appropriate federal agencies in carrying out the purposes of the Act and the VOSHA Code.

Added 1971, No. 205 (Adj. Sess.), § 1.

History

Reference in text. The "Occupational Safety and Health Act of 1970", referred to in the second sentence, is codified as 29 U.S.C. § 651 et seq.

Effective date. For effective date of this section, see note set out under § 201 of this title.

ANNOTATIONS

Cited. Lafond v. Department of Social & Rehabilitation Servs., 167 Vt. 407, 708 A.2d 919 (1998).

§ 222. Application.

The VOSHA Code shall apply with respect to employers, employees, and employment in or at a work place in the State of Vermont, except that:

  1. Standards applicable to products which are distributed or used in interstate commerce which are different from federal standards for such products shall not be promulgated under the VOSHA Code unless such standards are required by compelling local conditions and do not unduly burden interstate commerce.
  2. Nothing in the VOSHA Code shall be construed to supersede or in any manner affect the workers' compensation laws of this State pursuant to chapters 9 and 11 of this title, or enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of employment.

    Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 12; 1981, No. 165 (Adj. Sess.), § 1.

History

Reference in text. Chapter 11 of this title, referred to in subdiv. (2), was repealed by 1999, No. 41 , § 8(a)(1).

Revision note. Subsection designation at beginning of section deleted to conform section to V.S.A. style.

In subdiv. (2), substituted "this title" for "Title 21" to conform reference to V.S.A. style.

Amendments--1981 (Adj. Sess.). Subdiv. (2): Substituted "workers" for "workmen's" preceding "compensation".

Amendments--1973 (Adj. Sess.). Subdiv. (1): Amended generally.

Effective date. For effective date of this section, see note set out under § 201 of this title.

ANNOTATIONS

Cited. Green Mountain Power Corp. v. Commissioner of Labor & Industry, 136 Vt. 15, 383 A.2d 1046 (1978).

§ 223. Duties.

  1. Each employer shall furnish to each of his or her employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or significant physical harm to his or her employees; and the employer shall comply with safety and health standards promulgated under the VOSHA Code.
  2. Each employee shall comply with the safety and health standards and all rules, regulations, and orders of the VOSHA Code which are applicable to his or her own actions or conduct.

    Added 1971, No. 205 (Adj. Sess.), § 1.

History

Effective date. For effective date of this section, see note set out under § 201 of this title.

ANNOTATIONS

Analysis

1. Employer's duty .

Provision of this section that employer shall furnish workplaces free from recognized hazards causing or likely to cause death or significant physical harm does not impose an absolute duty or absolute liability upon employers; the preventative and deterrent nature of VOSHA indicates the duty is to be an achievable one, and the policies underlying VOSHA do not accord with a finding that an absolute duty exists. Green Mountain Power Corp. v. Commissioner of Labor & Industry, 136 Vt. 15, 383 A.2d 1046 (1978).

Where power company issued safety instructions and held safety meetings, and with respect to first class linemen, had policy that all safety determinations regarding protective covering were to be made by the first class lineman doing the work, even when he or she was under immediate supervision of a foreman, company did not discharge its responsibility under this section to provide employees with workplaces free of recognized hazards causing or likely to cause death or significant physical harm. Green Mountain Power Corp. v. Commissioner of Labor & Industry, 136 Vt. 15, 383 A.2d 1046 (1978).

2. Employee compliance.

This section places upon employer a duty to attempt to secure employee compliance with the requirements of VOSHA. Green Mountain Power Corp. v. Commissioner of Labor & Industry, 136 Vt. 15, 383 A.2d 1046 (1978).

This section does not make an employer the guarantor of employee compliance with the provisions of VOSHA. Green Mountain Power Corp. v. Commissioner of Labor & Industry, 136 Vt. 15, 383 A.2d 1046 (1978).

A recognized hazard, within this section, is preventable if demonstrably feasible measures taken by employer materially reduce likelihood of existence of the hazard; and if additional feasible steps could not have been taken to avoid noncompliance with the requirements of VOSHA by employees there is no basis for imposing liability where employee noncompliance causes harm to the employee. Green Mountain Power Corp. v. Commissioner of Labor & Industry, 136 Vt. 15, 383 A.2d 1046 (1978).

3. Hazards.

Inadequately covered high voltage wire was a "hazard . . . likely to cause death or significant physical harm" under this section. Green Mountain Power Corp. v. Commissioner of Labor & Industry, 136 Vt. 15, 383 A.2d 1046 (1978).

Where power company and the industry in general took hazard of live wires on poles seriously enough to formulate a specific safety rule of covering all wires within reach of a working employee, uncovered wire which electrocuted power company's lineman was a "recognized hazard" within this section. Green Mountain Power Corp. v. Commissioner of Labor & Industry, 136 Vt. 15, 383 A.2d 1046 (1978).

4. Violations.

Where first class lineman working on pole was electrocuted by a live wire while disconnecting a temporary connecting wire, and power company's policy was that first class linemen were to make all determinations regarding protective covering, even if under immediate supervision of a foreman, and there was a foreman present who knew there was inadequate protective covering where lineman was working, company violated this section's provision that employers provide workplaces free of recognized hazards causing or likely to cause death or significant physical harm. Green Mountain Power Corp. v. Commissioner of Labor & Industry, 136 Vt. 15, 383 A.2d 1046 (1978).

Cited. Dunham v. Chase, 165 Vt. 543, 674 A.2d 1279 (mem.) (1996); Gerrish v. Savard, 169 Vt. 468, 739 A.2d 1195 (1999); Vella v. Hartford Vt. Acquisitions, Inc., 176 Vt. 151, 838 A.2d 126 (2003).

Law review commentaries

Law review. The General Duty Clause of the Vermont Occupational Safety & Health Act, see 4 Vt. L. Rev. 305 (1979).

§ 224. Rules and standards.

  1. The Commissioner shall adopt rules and standards necessary to implement the purposes and duties set forth in this subchapter insofar as they relate to safety and to enforcement of the VOSHA Code.
  2. The Commissioner, in consultation with the Secretary of Human Services, shall adopt rules and standards necessary to implement the purposes of the VOSHA Code and duties thereunder, insofar as they relate to health.
  3. Any standard adopted under this section shall prescribe the use of labels or other appropriate forms of warning as are necessary to inform employees of all safety or health hazards to which they are exposed, relevant symptoms and appropriate emergency treatment, and proper conditions and precautions for safe use or exposure. Where appropriate, a rule shall prescribe suitable protective clothing, devices, or equipment which shall be provided by the employer, and control or technological procedures to be used in connection with the safety or health hazard; and shall provide for monitoring or measuring employee exposure at such locations and intervals and in such manner as may be necessary for the protection of employees.
  4. Where appropriate, a standard adopted in consultation with the Secretary of Human Services may prescribe the type and frequency of medical examinations or other tests which shall be made available by an employer or at the expense of the employer, to employees exposed to health hazards in employment, in order to effectively determine whether the health of the employee is adversely affected by exposure to the hazard. In the event medical examinations are in the nature of research, as determined by the Secretary of Human Services, such examinations may be furnished at the expense of the State. The results of the examinations or tests shall be furnished only to the Secretary of Human Services, the Commissioner of Health, the Director of Occupational Health, the Commissioner of Labor, and at the request of the employee, to the employee's physician and the employee.
  5. The Commissioner, in consultation with the Secretary, in adopting standards dealing with toxic materials or harmful physical agents under this section, shall set the standard which most adequately ensures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his or her working life. Development of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of safety and health protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other safety and health laws. Whenever practicable, the standard adopted shall be expressed in terms of objective criteria and of the performance desired.

    Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 18; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2015, No. 23 , § 119; 2015, No. 87 (Adj. Sess.), § 2; 2015, No. 97 (Adj. Sess.), § 54.

History

2016. Subsections (d) and (e) were amended by 2015, No. 87 (Adj. Sess.), and 2015, No. 97 (Adj. Sess.) resulting in two versions of subsections (d) and (e). In order to reflect the intent of the Legislature, the changes enacted by Acts No. 87 and 97 were merged to create a single version of subsections (d) and (e). The changes made by each of the acts are described in the amendment notes below.

Amendments--2015 (Adj. Sess.). Subsec. (b): Inserted "Commissioner, in consultation with the" preceding "Secretary of Human Services" and deleted the former second sentence.

Subsec. (c): Act No. 97 substituted "adopted" for "promulgated" following "standard".

Subsec. (d): Act No. 87 substituted "adopted in consultation with" for "promulgated" following "standard".

Subsec. (d): Act No. 97 substituted "adopted" for "promulgated" following "standard".

Subsec. (e): Act No. 87 substituted ", in consultation with the" for "or" preceding "Secretary"; "adopting" for "promulgating" preceding "standards" in the first sentence; "ensures" for "assures" following "adequately"; and "adopted" for "promulgated" following "standard" in the fourth sentence.

Subsec. (e): Act No. 97 substituted "adopting" for "promulgating" preceding "standards" in the first sentence and "adopted" for "promulgated" following "standard" in the fourth sentence.

Amendments--2015. Substituted "adopt" for "make and promulgate" preceding "rules" in subsecs. (a) and (b).

Amendments--2005 (Adj. Sess.) Subsec. (d): Substituted "Commissioner of Labor" for "commissioner of labor and industry" in the last sentence.

Amendments--1973 (Adj. Sess.). Subsec. (e): Added.

Effective date. For effective date of this section, see note set out under § 201 of this title.

§ 225. Citations.

    1. If, upon inspection or investigation, the Commissioner or the Director or the agent of either of them finds that an employer has violated a requirement of the VOSHA Code, the Commissioner shall with reasonable promptness issue a citation to the employer and serve it on the employer by certified mail or in the same manner as a summons to the Superior Court. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provisions of the statute, standard, rule, or order alleged to have been violated, as well as the penalty, if any, proposed to be assessed pursuant to section 210 of this title. In addition, the citation shall fix a reasonable time for the abatement of the violation. (a) (1)  If, upon inspection or investigation, the Commissioner or the Director or the agent of either of them finds that an employer has violated a requirement of the VOSHA Code, the Commissioner shall with reasonable promptness issue a citation to the employer and serve it on the employer by certified mail or in the same manner as a summons to the Superior Court. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provisions of the statute, standard, rule, or order alleged to have been violated, as well as the penalty, if any, proposed to be assessed pursuant to section 210 of this title. In addition, the citation shall fix a reasonable time for the abatement of the violation.
    2. By rule, the Commissioner shall adopt procedures for issuance of a notice in lieu of a citation with respect to de minimis violations that have no direct or immediate relationship to safety or health and for hearing interested parties before a civil penalty is assessed.
  1. Each citation issued under this section, or a copy or copies of the citation, shall be prominently posted, as prescribed in rules adopted by the Commissioner, at or near each place a violation referred to in the citation occurred or existed.
  2. A citation issued under this section may be served by an agent of the Commissioner, who shall make return in the same manner as sheriffs, deputy sheriffs, or constables make after serving a summons.
  3. A citation may not be issued after six months following the inspection or investigation that reveals the violation.

    Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 54 , § 69, eff. June 1, 2009; 2017, No. 148 (Adj. Sess.), § 6, eff. May 21, 2018.

History

Revision note. At the end of subsec. (c), deleted "writ of" preceding "summons" to conform language to Rule 4, Vermont Rules of Civil Procedure, pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments--2017 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Substituted "of the citation" for "thereof" following "copies" and "adopted" for "promulgated" following "rules".

Amendments--2009. Subsec. (a): Inserted "by certified mail or" preceding "in the same manner" in the first sentence.

Amendments--1973 (Adj. Sess.). Subsec. (a): Substituted "Superior" for "county" preceding "court" at the end of the first sentence.

Effective date. For effective date of this section, see note set out under § 201 of this title.

Cross References

Cross references. Imminent danger, see § 208 of this title.

ANNOTATIONS

Cited. Lafond v. Department of Social & Rehabilitation Servs., 167 Vt. 407, 708 A.2d 919 (1998).

§ 226. Enforcement.

    1. An employer shall, within 20 days after personal service or receipt of a citation issued under section 225 of this title, notify the Commissioner that he or she wishes to appeal the citation or proposed penalty. (a) (1)  An employer shall, within 20 days after personal service or receipt of a citation issued under section 225 of this title, notify the Commissioner that he or she wishes to appeal the citation or proposed penalty.
    2. If an employer does not notify the Commissioner as provided in this subsection and an employee does not file a notice under subsection (c) of this section, the citation and penalty, as proposed, shall be deemed a final order of the Review Board and not subject to review by any court or agency.
      1. If the Commissioner on inspection or investigation finds that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction, the Commissioner shall notify the employer by certified mail of the failure and of the penalty proposed to be assessed under section 210 of this title by reason of the failure. (b) (1) (A)  If the Commissioner on inspection or investigation finds that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction, the Commissioner shall notify the employer by certified mail of the failure and of the penalty proposed to be assessed under section 210 of this title by reason of the failure.
      2. The period to correct a violation shall begin to run:
        1. when a final order is entered by the Review Board in relation to review proceedings under this section that are initiated by an employer in good faith and not solely for delay or avoidance of penalties; or
        2. on the day the citation and penalty become final under subsection (a) of this section.
    1. The employer shall have 20 days after the receipt of the notice to notify the Commissioner that he or she wishes to appeal the Commissioner's citation or the proposed penalty. If, within 20 days from the receipt of the notification issued by the Commissioner, the employer fails to notify the Commissioner that he or she intends to appeal, the citation and assessment, as proposed, shall be deemed a final order of the Review Board and not subject to review by any court or agency.
  1. If an employer notifies the Commissioner that the employer intends to contest a citation issued under section 225 of this title, or if, within 20 days after the issuance of a citation under section 225 of this title, any employee or representative of employees files a notice with the Commissioner alleging that the period of time fixed in the citation for the abatement of the violation is unreasonable, the Commissioner shall immediately advise the Review Board of the notification and the Review Board shall afford an opportunity for a hearing. Unless a notice is timely filed, the proposed penalty and, in appropriate cases, the citation shall be deemed a final order of the Review Board not subject to review by any court or agency.
  2. After hearing an appeal, the Review Board shall issue an order based on findings of fact that affirms, modifies, or vacates the Commissioner's citation or proposed penalty, or both, or provides other appropriate relief. The order shall become final 30 days after its issuance unless judicial review is timely taken under section 227 of this title. The rules of procedure adopted by the Review Board shall provide affected employees or their representatives with an opportunity to participate as parties in a hearing under this subsection.

    Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 13; 2017, No. 148 (Adj. Sess.), § 7, eff. May 21, 2018; 2021, No. 20 , § 215.

History

Amendments--2021. Subsec. (c): In the first sentence, substituted "the employer" for "he or she" preceding "intends”; and deleted "issued" preceding the second occurrence of "under section 225".

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--1973 (Adj. Sess.). Subsec. (a): Substituted "receipt" for "mailing" preceding "of the notice" in the second sentence.

Subsec. (b): Substituted "receipt" for "mailing" preceding "of the notice" in the second sentence.

Subsec. (c): Amended generally.

Effective date. For effective date of this section, see note set out under § 201 of this title.

Cross References

Cross references. Occupational Safety and Health Review Board, see § 230 of this title.

ANNOTATIONS

Cited. Green Mountain Power Corp. v. Commissioner of Labor & Industry, 136 Vt. 15, 383 A.2d 1046 (1978).

§ 227. Judicial review.

  1. Any person adversely affected or aggrieved by an order of the Review Board may appeal to any Superior Court for the county in which the violation is alleged to have occurred or where the employer has its principal office. The appeal shall be taken within 30 days following the issuance of such order. The court shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth in such record a decree affirming, modifying, or setting aside in whole or in part, the order of the Review Board and enforcing the same to the extent that such order is affirmed or modified. The commencement of proceedings under this subsection shall not, unless ordered by the court, operate as a stay of the order of the Review Board. No objection that has not been urged before the Review Board shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of the Review Board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. If any party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for failure to adduce such evidence in the hearing before the Review Board, the court may order such additional evidence to be taken before the Review Board and to be made a part of the record. The Review Board may modify its findings as to the facts, or make new findings, by reason of additional evidence so taken and filed, and it shall file such modified or new findings, which findings with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive, and its recommendations, if any, for the modification or setting aside of its original order. Upon the filing of the record with it, the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the Supreme Court. Judicial review under this subsection shall be considered expeditiously.
  2. The Commissioner may also obtain a review or enforcement of any final order of the Review Board by filing a petition for such relief in the Superior Court within the jurisdiction of which the alleged violation occurred or in which the employer has its principal office and the provisions of subsection (a) of this section shall govern such proceedings to the extent applicable. If judicial review is not sought within 30 days after service of the Review Board's order, the Review Board's findings of fact and order shall be conclusive in connection with any petition for enforcement which is filed by the Commissioner after the expiration of such 30-day period. In any such case, as well as in the case of a noncontested citation or notification by the Commissioner, which has become a final order of the Review Board, the clerk of the court, unless otherwise ordered by the court, shall forthwith enter a decree enforcing the order and shall transmit a copy of such court decree to the Commissioner and the employer named in the petition. In any contempt proceeding brought to enforce a court decree entered pursuant to this subsection or subsection (a) of this section, the court may assess the penalties provided in addition to invoking any other available remedies.

    Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 14; 1997, No. 161 (Adj. Sess.), § 16, eff. Jan. 1, 1998.

History

Revision note. In the first sentences of subsecs. (a) and (b), substituted "Superior" for "county" preceding "Court" pursuant to 1973, No. 193 (Adj. Sess.), § 3. See note set out under § 71 of Title 4.

Amendments--1997 (Adj. Sess.). Subsec. (a): Rewrote the first three sentences, substituting references to taking an appeal for the procedure for filing a petition and substituting "30 days" for "sixty days", and in the last sentence substituted "Judicial review" for "Petitions filed" and "considered" for "heard".

Subsec. (b): Substituted "If judicial review is not sought within 30 days" for "If no petition for review, as provided in subsection (a) of this section, is filed within sixty days" and "30-day period" for "sixty day period" in the second sentence; added "court" after "copy of such" in the third sentence; and substituted "court decree" for "a decree of a court of appeals" and "court" for "court of appeals" in the last sentence.

Amendments--1973 (Adj. Sess.). Section amended generally.

Effective date. For effective date of this section, see note set out under § 201 of this title.

ANNOTATIONS

Cited. Green Mountain Power Corp. v. Commissioner of Labor & Industry, 136 Vt. 15, 383 A.2d 1046 (1978).

§ 228. Reports.

  1. Employers shall keep and file all reports and records required under the Act, and any reports and records which the Commissioner or the Secretary of Human Services may require by rule.
  2. The Commissioner shall make such reports to the Secretary of Labor in such form and containing such information as the Secretary shall from time to time require.
    1. Each employer shall make, keep, and preserve, and make available to the Secretary of the U.S. Department of Labor or the Secretary of Health and Human Services, such records regarding his or her activities relating to the Act as the Secretary of the U.S. Department of Labor, in cooperation with the Secretary of Health and Human Services, may prescribe by regulation as necessary or appropriate for the enforcement of the Act or for developing information regarding the causes and prevention of occupational accidents and illnesses.  In order to carry out the provisions of this subdivision, such regulations may include provisions requiring employers to conduct periodic inspections.  The Commissioner shall also issue regulations requiring that employers, through posting of notices or other appropriate means, keep their employees informed of their protections and obligations under this Code, including the provisions of applicable standards. (c) (1)  Each employer shall make, keep, and preserve, and make available to the Secretary of the U.S. Department of Labor or the Secretary of Health and Human Services, such records regarding his or her activities relating to the Act as the Secretary of the U.S. Department of Labor, in cooperation with the Secretary of Health and Human Services, may prescribe by regulation as necessary or appropriate for the enforcement of the Act or for developing information regarding the causes and prevention of occupational accidents and illnesses.  In order to carry out the provisions of this subdivision, such regulations may include provisions requiring employers to conduct periodic inspections.  The Commissioner shall also issue regulations requiring that employers, through posting of notices or other appropriate means, keep their employees informed of their protections and obligations under this Code, including the provisions of applicable standards.
    2. The Commissioner in cooperation with the Secretary, shall issue regulations requiring employees to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents which are required to be monitored or measured under section 224 of this title.  Such regulations shall provide employees or their representative with an opportunity to observe such monitoring or measuring, and to have access to the records thereof.  Such regulations shall also make appropriate provision for each employee or former employee to have access to such records as will indicate his or her own exposure to toxic materials or harmful physical agents. Each employer shall promptly notify any employee who has been or is being exposed to toxic materials or harmful physical agents in concentrations or at levels which exceed those prescribed by an applicable occupational safety and health standard promulgated under section 224 of this title and shall inform any employee who is being thus exposed of the corrective action being taken.

      Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 19.

History

Revision note. References to "Secretary of Health, Education, and Welfare" in the first sentence of subdiv. (c)(1) changed to "Secretary of Health and Human Services" to conform references to transfer of functions and change of titles within federal government pursuant to section 509 of P.L. 96-88. See 20 U.S.C. § 3508.

Reference to "this paragraph" in the second sentence of subdiv. (c)(1) changed to "this subdivision" to conform reference to V.S.A. style.

Amendments--1973 (Adj. Sess.). Subsec. (c): Added.

Effective date. For effective date of this section, see note set out under § 201 of this title.

§ 229. Repealed. 2009, No. 135 (Adj. Sess.), § 26(9).

History

Former § 229. Former § 229, relating to the VOSHA advisory councils, was derived from 1971, No. 205 (Adj. Sess.), § 1 and amended by 2003, No. 156 (Adj. Sess.), § 15.

§ 230. Occupational Safety and Health Review Board.

  1. An Occupational Safety and Health Review Board is created.  It shall consist of three members who shall be appointed by the Governor, with the advice and consent of the Senate.  The members of the Board shall be appointed for terms of six years, but initially in a manner so that one term expires in two years, one term in four years, and one term in six years. Thereafter, biennially, in the month of February, with the advice and consent of the Senate, the Governor shall appoint a person as a member of such Board for the term of six years, whose term of office shall commence on March 1 of the year in which such appointment is made.  The Governor, biennially, shall designate a member of such Board to be its Chair.
  2. With the approval of the Secretary of Administration, the Board may employ such employees as it deems necessary, and may without such approval employ and remove a clerk and a reporter for taking and transcribing testimony in hearings before it and such hearing judges as it deems necessary to hear appeals on behalf of the Board.  Compensation for employees of the Board shall be fixed by the Commissioner of Human Resources. The hearing judge appointed by the Board shall hear, and make a determination upon, any proceeding instituted before the Board and any motion in connection therewith, assigned to such hearing judge by the Chair of the Board, and shall make a report of any such determination which constitutes his or her final disposition of the proceedings.  The report of the hearing judge shall become the final order of the Board within 30 days after such report by the hearing examiner, unless within such period any Board member has directed that such report shall be reviewed by the Board.
  3. Every official act of the Board shall be entered on record, and its hearings and records shall be open to the public.
  4. The Board is authorized to make such rules as are necessary for the orderly transaction of its proceedings.  Unless the Board has adopted a different rule, its proceedings shall be in accordance with the rules promulgated by the Supreme Court for the Superior Courts.
  5. The office of the Board shall be located in Montpelier, but proceedings shall be held at places within the State convenient to persons appearing before it.
  6. The compensation of members of the Board shall be fixed by the Commissioner of Human Resources.
  7. The Board shall be attached to the Governor's office for administrative purposes.

    Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1973, No. 214 (Adj. Sess.), § 15; 1981, No. 34 , § 1; 2003, No. 156 (Adj. Sess.), § 15.

History

Amendments--2003 (Adj. Sess.). Subsecs. (b), (f): Substituted "Commissioner of Human Resources" for "Commissioner of Personnel".

Amendments--1981. Subsec. (a): Amended generally.

Amendments--1973 (Adj. Sess.). Subsec. (a): Act No. 214 deleted the former fourth sentence.

Subsec. (b): Act No. 214 added "and such hearing judges as it deems necessary to hear appeals before the board" following "before it" at the end of the first sentence and added the third and fourth sentences.

Subsec. (d): Act No. 193 substituted "superior" for "county" preceding "courts" at the end of the second sentence.

Effective date. For effective date of this section, see note set out under § 201 of this title.

Cross References

Cross references. Appeals to Board, see § 226 of this title.

Judicial review of orders of the Board, see § 227 of this title.

§ 231. Employee rights.

  1. No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself, herself, or others of any right afforded by this chapter.
  2. Any employee who believes that he or she has been discharged or otherwise discriminated against by any person in violation of this section may, within 30 days after such violation occurs, file a complaint with the Commissioner alleging such discrimination.  Upon receipt of such complaint, the Commissioner shall cause such investigation to be made as he or she deems appropriate.  If upon such investigation, the Commissioner determines that the provisions of this section have been violated, he or she shall bring an action in any appropriate State court against such person.  In any such action, the State courts shall have jurisdiction, for cause shown to restrain violations of subsection (a) of this section and order all appropriate relief, including rehiring or reinstatement of the employee to his or her former position with back pay.
  3. Within 90 days of the receipt of a complaint filed under this section, the Commissioner shall notify the complainant of his or her determination under subsection (b) of this section.

    Added 1973, No. 214 (Adj. Sess.), § 20.

ANNOTATIONS

Cited. Haverly v. Kaytec, Inc., 169 Vt. 350, 738 A.2d 86 (1999).

§ 232. Private right of action.

An employee aggrieved by a violation of section 231 of this title may bring an action in Superior Court for appropriate relief, including reinstatement, triple wages, damages, costs, and reasonable attorney's fees. Such an action may be brought in addition to or in lieu of an action under section 231 of this title.

Added 1989, No. 164 (Adj. Sess.).

History

2016. Deleted "but not limited to" following "including" in accordance with 2013, No. 5 , § 4.

ANNOTATIONS

Cited. O'Brien v. Island Corp., 157 Vt. 135, 596 A.2d 1295 (1991).

Subchapter 6. Boilers and Pressure Vessels

§§ 241-246. Repealed. 2003, No. 141 (Adj. Sess.), § 12, eff. April, 1, 2005.

History

Former §§ 241-246. Former § 241, relating to general duties, was derived from 1971, No. 205 (Adj. Sess.), § 1

Former § 242, relating to Commissioner's authority to make rules, was derived from 1971, No. 205 (Adj. Sess.), § 1; and amended by 1999, No. 49 , § 134.

Former § 243, relating to inspections by insurance companies, was derived from 1971, No. 205 (Adj. Sess.), § 1; and amended by 1999, No. 49 , § 136.

Former § 244, relating to qualifications of inspectors, was derived from 1971, No. 205 (Adj. Sess.), § 1.

Former § 245, relating to penalties, was derived from 1993, No. 135 (Adj. Sess.), § 1.

Former § 246, relating to boiler and pressure vessel inspection fees, was derived from 1999, No. 49 , § 137, and was previously repealed by 2001, No. 143 (Adj. Sess.), § 1.

Annotations From Former § 241

1. Liability.

Intent of this section is to place responsibility for safe operation upon the person operating the boiler, whether it be the owner or the one in control. O'Brien v. Island Corp., 157 Vt. 135, 596 A.2d 1295 (1991).

Liability for injuries sustained when tenant's employee became trapped in a boiler could not be imposed on the owner of the building by reason of ownership alone. O'Brien v. Island Corp., 157 Vt. 135, 596 A.2d 1295 (1991).

Annotations from Former § 242.

Cited. O'Brien v. Island Corp., 157 Vt. 135, 596 A.2d 1295 (1991).

Subchapter 7. Fire Safety and Prevention

Cross References

Cross references. Smoke detector requirements for single-family dwellings, see 9 V.S.A. § 2881 et seq.

§§ 251-257. Repealed. 2003, No. 141 (Adj. Sess.), § 12, eff. April 1, 2005.

History

Former §§ 251-257. Former § 251a, relating to definitions of public housing, was derived from 1973, No. 214 (Adj. Sess.), § 21 and amended by 1987, No. 268 (Adj. Sess.), § 4, eff. June 21, 1988; 1989, No. 209 (Adj. Sess.), § 1; 1991, No. 130 (Adj. Sess.), § 4; 1995, No. 184 (Adj. Sess.), § 2; No. 185 (Adj. Sess.), § 55, eff. May 22, 1996.

Former § 251, relating to general duties pertaining to fire safety and prevention, was derived from 1971, No. 205 (Adj. Sess.), § 1 and amended by 1973, No. 214 (Adj. Sess.), § 22.

Former § 251a, relating to definitions of public housing, was derived from 1973, No. 214 (Adj. Sess.), § 21 and amended by 1987, No. 268 (Adj. Sess.), § 4, eff. June 21, 1988; 1989, No. 209 (Adj. Sess.), § 1; 1991, No. 130 (Adj. Sess.), § 4; 1995, No. 184 (Adj. Sess.), § 2; No. 185 (Adj. Sess.), § 55, eff. May 22, 1996.

Former § 252, relating to rules, inspections, and variances, was derived from 1971, No. 205 (Adj. Sess.), § 1; and amended by 1973, No. 214 (Adj. Sess.), § 16; 1979, No. 133 (Adj. Sess.); 1981, No. 121 (Adj. Sess.), § 1; 1985, No. 43 ; 1987, No. 76 , § 11; 1991, No. 234 (Adj. Sess.), § 5; No. 259 (Adj. Sess.), § 11; 1993, No. 108 (Adj. Sess.), § 15; 1995, No. 47 , § 8; No. 186 (Adj. Sess.), § 5; 1997, No. 59 , § 35; 1999, No. 49 , § 138; 2001, No. 61 , § 31; 2001, No. 114 (Adj. Sess.), § 18; 2001, No. 143 (Adj. Sess.), §§ 2, 2a, 2b; 2003, No. 122 (Adj. Sess.), § 294r; No. 141 (Adj. Sess.), § 12.

Former § 252a, relating to the Historic Variance Appeals Board, variances and exemptions, was derived from 1995, No. 185 (Adj. Sess.), § 56 and amended by 1997, No. 62 , § 42.

Former § 253, relating to orders to repair, rehabilitate or remove structure, was derived from 1995, No. 185 (Adj. Sess.), § 56 and amended by 1997, No. 62 , § 42.

Former § 254, relating to penalties, was derived from 1973, No. 214 (Adj. Sess.), § 23 and amended by 1993, No. 135 (Adj. Sess.), § 2.

Former § 255, relating to State building, was derived from 1979, No. 121 (Adj. Sess.), § 10 and amended by 1981, No. 121 (Adj. Sess.), § 3; 2003, No. 122 (Adj. Sess.), § 294s; No. 141 (Adj. Sess.), § 12.

Former § 256, relating to municipal enforcement, was derived from 1981, No. 121 (Adj. Sess.), § 4.

Former § 257, relating to building permits, was derived from 1981, No. 121 (Adj. Sess.), § 5.

§ 258. Repealed. 2005, No. 8, § 18, eff. April 1, 2005.

History

Former § 258. Former § 258, relating to inspection and licensing fund, was derived from 1991, No. 234 (Adj. Sess.), § 4 and amended by 1999, No. 49 , § 139; 2003, No. 141 (Adj. Sess.), § 9. For present provisions, see now § 2739 of Title 20.

Subchapter 8. Dangerous Substances

Cross References

Cross references. Licensing of explosives, see 20 V.S.A. § 3071 et seq.

ANNOTATIONS

Cited. Terino v. Town of Hartford Zoning Board of Adjustment, 148 Vt. 610, 538 A.2d 160 (1987).

§§ 261-264. Repealed. 2003, No. 141 (Adj. Sess.), § 12.

History

Former §§ 261-264. Former § 261, relating to definitions of dangerous substances, was derived from 1971, No. 205 (Adj. Sess.), § 1.

Former §§ 262-264, relating to authority of commissioner to make rules and standards regarding dangerous substances, seizure of materials and orders to remove or abate, were derived from 1971, No. 205 (Adj. Sess.), § 1.

Subchapter 9. Building Energy Standards

History

Amendments--2005 (Adj. Sess.) 2005, No. 208 (Adj. Sess.), § 6, deleted "residential" preceding "building" in the subchapter heading.

Recodification of subchapter. Former subchapter 9 of this chapter, consisting of sections 266-269, was recodified as 30 V.S.A. §§ 51-54 pursuant to 2013, No. 89 , § 11.

2013 statutory revision. 2013, No. 89 , § 11 provides: "(a) 21 V.S.A. §§ 266, 267, 268, and 269 are recodified respectively as 30 V.S.A. §§ 51, 52, 53, and 54. During statutory revision, the Office of Legislative Council shall revise accordingly any references to these statutes contained in the Vermont Statutes Annotated. Any references in session law and adopted rules to these statutes as previously codified shall be deemed to refer to the statutes as recodified by this act."

§§ 266-269. Recodified. 2013, No. 89, § 11.

History

Recodification of sections. 2013, No. 89 , § 11 provides: "(a) 21 V.S.A. §§ 266, 267, 268, and 269 are recodified respectively as 30 V.S.A. §§ 51, 52, 53, and 54. During statutory revision, the Office of Legislative Council shall revise accordingly any references to these statutes contained in the Vermont Statutes Annotated. Any references in session law and adopted rules to these statutes as previously codified shall be deemed to refer to the statutes as recodified by this act."

CHAPTER 4. ACCESSIBILITY STANDARDS FOR PUBLIC BUILDINGS AND PARKING

History

Amendments--1999 (Adj. Sess.) 1999, No. 88 (Adj. Sess.), § 3, eff. April 27, 2000, added the subchapter 1 heading: "Public Buildings and Parking".

Amendments--1995 (Adj. Sess.) 1995, No. 187 (Adj. Sess.), § 1, rewrote the chapter heading.

Transitional provisions and enforcement 1995, No. 187 (Adj. Sess.), § 7, provided:

"(a) A building for which a permit from the department of labor and industry for new construction, alteration, renovation or an addition was granted prior to July 1, 1996, and on which work pursuant to that permit was commenced before July 1, 1997, may be constructed, altered, renovated or added to in compliance with the building accessibility regulations in effect on the date the permit was issued. A building in compliance with this section shall not be construed to be a building in compliance with the Americans with Disabilities Act.

"(b) Notwithstanding any other provision of this act [which amended sections 271-275 of this title], the department of labor and industry shall not enforce the provisions of 21 V.S.A. § 277 against any person who received a permit for new construction, alteration, renovation or addition prior to January 1, 1997, or against the building for which the permit was issued provided that the building for which the permit was issued is in compliance with all accessibility requirements that were required under state law prior to July 1, 1996".

Cross References

Cross references. Discrimination against the handicapped generally, see 9 V.S.A § 4500 et seq.

Subchapter 1. Public Buildings and Parking

§§ 271-277. Repealed. 2003, No. 141 (Adj. Sess.), § 12.

History

2008 2007, No. 172 (Adj. Sess.), § 7, amended 21 V.S.A. 271(3), the predecessor to 20 V.S.A. § 2900(8) that was repealed in accordance with 2003, No. 141 (Adj. Sess.), § 12.

Former §§ 271-277. Former § 271, relating to definitions for accessibility standards for public buildings and parking, was derived from 1987, No. 268 (Adj. Sess.), § 5 and amended by 1989, No. 89 , § 7; 1989, No. 209 (Adj. Sess.), § 2; 1995, No. 187 (Adj. Sess.), § 2.

Former § 272, relating to Access Board, was derived from 1987, No. 268 (Adj. Sess.), § 5 and amended by 1989, No. 208 (Adj. Sess.), § 1; 1995, No. 148 (Adj. Sess.), § 4(c)(1); and No. 187 (Adj. Sess.), § 3.

Former § 273, relating to construction standards and variance, was derived from 1987, No. 268 (Adj. Sess.), § 5 and amended by 1989, No. 89 , § 8; and 1995, No. 187 (Adj. Sess.), § 4.

Former § 274, relating to exemptions, was derived from 1987, No. 268 (Adj. Sess.), § 5 and amended by 1995, No. 187 (Adj. Sess.), § 5; and 1999, No. 88 (Adj. Sess.), § 2.

Former § 275, relating to parking spaces, was derived from 1987, No. 268 (Adj. Sess.), § 5 and amended by 1995, No. 187 (Adj. Sess.), § 6.

Former § 276, relating to accessibility and markings with international symbol of access, was derived from 1987, No. 268 (Adj. Sess.), § 5.

Former § 277, relating to administration and enforcement, was derived from 1987, No. 268 (Adj. Sess.), § 5 and amended by 1993, No. 135 (Adj. Sess.), §§ 3, 4.

Subchapter 2. Residential Building Standards

§ 286. Repealed. 2003, No. 141 (Adj. Sess.), § 12.

History

Former § 286. Former § 286, relating to accessibility standards and residential construction, was derived from 1999, No. 88 (Adj. Sess.), § 4.

CHAPTER 5. EMPLOYMENT PRACTICES

Subchapter 1. Conditions for Employment

Cross References

Cross references. Drug testing of employees or applicant for employment, see § 511 et seq. of this title.

Fair employment practices generally, see § 495 et seq. of this title.

Polygraph examinations, see § 494 et seq. of this title.

§ 301. Medical examination, expense.

It shall be unlawful for any employer, as defined in section 302 of this title, to require any employee or applicant for employment to pay the cost of a medical examination as a condition of employment.

History

Source. 1949, No. 200 , § 1.

§ 302. Definitions.

For the purposes of this subchapter:

  1. "Employer" means any individual, organization, or governmental body, including any partnership, association, trustee, estate, corporation, joint stock company, insurance company, or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, and any common carrier by mail, motor, water, air, or express company doing business in or operating within this State, and any agent of the employer, that has one or more individuals performing services for it within this State.
  2. "Employee" means every person who may be permitted, required, or directed by any employer, in consideration of direct or indirect gain or profit, to perform services.

    Amended 2007, No. 144 (Adj. Sess.), § 1.

History

Source. 1949, No. 200 , §§ 2, 3.

2003. Added introductory phrase to conform to V.S.A. style.

Amendments--2007 (Adj. Sess.). Section amended generally.

§ 303. Penalty; judicial bureau.

Any employer who violates the provisions of this subchapter shall be assessed a civil penalty of not more than $100.00 for each and every violation.

Amended 2007, No. 144 (Adj. Sess.), § 3.

History

Source. 1949, No. 200 , § 4.

Amendments--2007 (Adj. Sess.). Added "judicial bureau" in the section heading, and substituted "assessed a civil penalty of" for "fined".

§ 304. Employment conditions.

An employer shall provide an employee with reasonable opportunities during work periods to eat and to use toilet facilities in order to protect the health and hygiene of the employee.

Added 1997, No. 115 (Adj. Sess.), § 1, eff. Jan. 1, 1999.

§ 305. Nursing mothers in the workplace.

  1. For an employee who is a nursing mother, the employer shall for three years after the birth of a child:
    1. Provide reasonable time, either compensated or uncompensated, throughout the day to express breast milk for her nursing child. The decision to provide compensated time shall be in the sole discretion of the employer, unless modified by a collective bargaining agreement.
    2. Make a reasonable accommodation to provide appropriate private space that is not a bathroom stall.
  2. An employer may be exempted from the provisions of subsection (a) of this section if providing time or an appropriate private space for expressing breast milk would substantially disrupt the employer's operations.
  3. An employer shall not retaliate or discriminate against an employee who exercises or attempts to exercise the rights provided under this section. The provisions against retaliation in subdivision 495(a)(8) of this title and the penalty and enforcement provisions of section 495b of this title shall apply to this section.
  4. In lieu of an enforcement action through the Vermont Judicial Bureau, the Attorney General or a State's Attorney may enforce the provisions of this section by bringing a civil action for temporary or permanent injunctive relief, economic damages, including prospective lost wages for a period not to exceed one year, and investigative and court costs. The Attorney General or a State's Attorney may conduct an investigation of an alleged violation and enter into a settlement agreement with the employer. Such investigation shall not be a prerequisite to bringing a court action.

    Added 2007, No. 144 (Adj. Sess.), § 2; amended 2013, No. 31 , § 4; 2017, No. 74 , § 32.

History

Amendments--2017. Subsec. (d): Inserted "and" preceding "investigative" in the first sentence.

Amendments--2013. Subsec. (c): Substituted "who exercises or attempts to exercise the rights" for "who exercises the right" in the first sentence, and added the second sentence.

§ 306. Public policy of the State of Vermont; employment separation agreements.

In support of the State's fundamental interest in protecting the safety of minors and vulnerable adults, as defined in 33 V.S.A. § 6902 , it is the policy of the State of Vermont that no confidential employment separation agreement shall inhibit the disclosure to prospective employers and responsible licensing entities of factual information about a prospective employee's background that would lead a reasonable person to conclude that the prospective employee has engaged in conduct jeopardizing the safety of a minor or vulnerable adult. Any provision in an agreement entered into on or after the effective date of this section that attempts to do so is void and unenforceable.

Added 2009, No. 157 (Adj. Sess.), § 17, eff. June 3, 2010; amended 2018, No. 5 (Sp. Sess.), § 4, eff. June 19, 2018.

History

Amendments--2018 (Sp. Sess.). Added "and responsible licensing entities" following "prospective employers" in the first sentence.

§ 307. Repealed. 2011, No. 56, § 27(2), eff. May 31, 2011.

History

Former § 307. Former § 307, relating to requiring employers to disclose employee conduct potentially jeopardizing safety of a minor or vulnerable adult, was derived from 2009, No. 157 (Adj. Sess.), § 18.

Effective date of section. 2009, No. 157 (Adj. Sess.), § 22(a), effective April 1, 2011 as amended by 2011, No. 5 , § 1, effective March 31, 2011 provides: "Sec. 18 of this act [which enacted this section] shall take effect on July 1, 2011."

Repeal of amendments of 2009 (Adj. Sess.). 2011, No. 5 6 , § 27(2) provides that the amendments to this section by 2009, No. 157 (Adj. Sess.), § 18 and as amended by 2011, No. 5 , § 1 are repealed.

§ 308. Repealed. 2011, No. 56 § 28(2).

History

Former § 308. Former § 308, relating to employers of individuals who work with minors or vulnerable adults; job reference information from former employers; limitation from liability, was derived from 2011, No. 56 , § 21.

Applicability and sunset of section. 2011, No. 56 , § 28(2) provides that this act [which enacted this section] shall take effect July 1, 2011 and shall apply to disclosures made on and after that date and shall be repealed effective July 1, 2013.

§ 309. Flexible working arrangements.

    1. An employee may request a flexible working arrangement that meets the needs of the employer and employee. The employer shall consider a request using the procedures in subsections (b) and (c) of this section at least twice per calendar year. (a) (1)  An employee may request a flexible working arrangement that meets the needs of the employer and employee. The employer shall consider a request using the procedures in subsections (b) and (c) of this section at least twice per calendar year.
    2. As used in this section, "flexible working arrangement" means intermediate or long-term changes in the employee's regular working arrangements, including changes in the number of days or hours worked, changes in the time the employee arrives at or departs from work, work from home, or job-sharing. "Flexible working arrangement" does not include vacation, routine scheduling of shifts, or another form of employee leave.
    1. The employer shall discuss the request for a flexible working arrangement with the employee in good faith. The employer and employee may propose alternative arrangements during the discussion. (b) (1)  The employer shall discuss the request for a flexible working arrangement with the employee in good faith. The employer and employee may propose alternative arrangements during the discussion.
    2. The employer shall consider the employee's request for a flexible working arrangement and whether the request could be granted in a manner that is not inconsistent with its business operations or its legal or contractual obligations.
    3. As used in this section, "inconsistent with business operations" includes:
      1. the burden on an employer of additional costs;
      2. a detrimental effect on aggregate employee morale unrelated to discrimination or other unlawful employment practices;
      3. a detrimental effect on the ability of an employer to meet consumer demand;
      4. an inability to reorganize work among existing staff;
      5. an inability to recruit additional staff;
      6. a detrimental impact on business quality or business performance;
      7. an insufficiency of work during the periods the employee proposes to work; and
      8. planned structural changes to the business.
  1. The employer shall notify the employee of the decision regarding the request. If the request was submitted in writing, the employer shall state any complete or partial denial of the request in writing.
  2. This section shall not diminish any rights under this chapter or pursuant to a collective bargaining agreement. An employer may institute a flexible working arrangement policy that is more generous than is provided by this section.
  3. The Attorney General, a State's Attorney, or the Human Rights Commission in the case of State employees may enforce subsections (b) and (c) of this section by restraining prohibited acts, conducting civil investigations, and obtaining assurances of discontinuance in accordance with the procedures established in subsection 495b(a) of this title. An employer subject to a complaint shall have the rights and remedies specified in subsection 495b(a) of this title. An investigation against an employer shall not be a prerequisite for bringing an action. The Civil Division of the Superior Court may award injunctive relief and court costs in any action. There shall be no private right of action to enforce this section.
  4. An employer shall not retaliate against an employee exercising his or her rights under this section. The provisions against retaliation in subdivision 495(a)(8) of this title and the penalty and enforcement provisions of section 495b of this title shall apply to this section.
  5. Nothing in this section shall affect any legal rights an employer or employee may have under applicable law to create, terminate, or modify a flexible working arrangement.

    Added 2013, No. 31 , § 6, eff. Jan. 1, 2014.

Subchapter 2. Wages and Medium of Payment

Cross References

Cross references. Liens for wages generally, see 9 V.S.A. § 1971 et seq.

Liens on logs for wages, see 9 V.S.A. § 1991 et seq.

Minimum wages, see § 381 et seq. of this title.

Unclaimed wages, see 27 V.S.A. § 1241 et. seq.

§ 341. Definitions.

As used in this subchapter:

  1. "Employee" means a person who has entered into the employment of an employer, where the employer is unable to show that:
    1. the individual has been and will continue to be free from control or direction over the performance of such services, both under the contract of service and in fact; and
    2. the service is either outside all the usual course of business for which such service is performed, or outside all the places of business of the enterprise for which such service is performed; and
    3. the individual is customarily engaged in an independently established trade, occupation, profession, or business.
  2. "Employer" means any person having employees in his or her service.
  3. "Commissioner" means the Commissioner of Labor or designee.
  4. "Department" means the Department of Labor.
  5. "Wages" means all remuneration payable for services rendered by an employee, including salary, commissions, and incentive pay.

    Amended 1963, No. 198 , § 1; 1995, No. 184 (Act. Sess.), § 3; 2013, No. 15 , § 1.

History

Source. V.S. 1947, § 8202. P.L. § 6613. G.L. § 5851. P.S. § 2699. 1906, No. 117 , § 1.

Reference in text. 2009. In subsec. (b), section 342b of this title, included in the phrase "sections 342-245 of this title" was repealed by 1999, No. 119 (Adj. Sess.), § 20, effective May 18, 2000.

Revision note. Substituted "Definitions" for "Employee construed" as the catchline to conform catchline to text of section as amended.

Subsection designations (1) and (2) changed to (a) and (b) to conform section to V.S.A. style.

Amendments--2013. Introductory paragraph: Added and designated existing subdivisions from alphas to numbers.

Subdiv. (1): Deleted "as used in this chapter" preceding "means".

Subdiv. (2): Deleted "as used in this sections 342-345 of this title" preceding "means".

Subdivs. (3)-(5): Added.

Amendments--1995 (Adj. Sess.) Subsec. (a): Amended generally.

Amendments--1963. Section amended generally.

ANNOTATIONS

1. Wages.

Payment due under a phantom share plan constituted "wages," as payout under the plan was guaranteed simply upon a change in control, regardless of the causes of that change, rather than being tied to the employee's service or to the employer's financial success. Tanzer v. MyWebGrocer, Inc., 209 Vt. 244, 203 A.3d 1186 (2018).

§ 342. Weekly payment of wages.

    1. Any employer having one or more employees doing and transacting business within the State shall pay each week, in lawful money or checks, the wages earned by each employee to a day not more than six days prior to the date of such payment. (a) (1)  Any employer having one or more employees doing and transacting business within the State shall pay each week, in lawful money or checks, the wages earned by each employee to a day not more than six days prior to the date of such payment.
    2. After giving written notice to the employee or employees, any employer having an employee or employees doing and transacting business within the State may, notwithstanding subdivision (1) of this subsection, pay biweekly or semimonthly in lawful money or checks each employee the wages earned by the employee to a day not more than six days prior to the date of the payment. If a collective bargaining agreement so provides, the payment may be made to a day not more than 13 days prior to the date of payment.
    3. A school district employee may elect in writing to have a set amount or set percentage of his or her after-tax wages withheld by the school district in a district-held bank account each pay period. The percentage or amount withheld shall be determined by the employee. At the option of the employee, the school district shall disburse the funds to the employee in either a single payment at the time the employee receives his or her final paycheck of the school year, or in equal weekly or biweekly sums beginning at the end of the school year. The school district shall disburse funds from the account in any sum as requested by the employee and, at the end of the school year or at the employee's option over the course of the period between the current and next school year, or upon separation from employment, shall remit to the employee any remaining funds, including interest earnings, held in the account. For employees within a bargaining unit organized pursuant to either chapter 22 of this title or 16 V.S.A. chapter 57, the school district shall implement this election in a manner consistent with the provisions of this subdivision and as determined through negotiations under those chapters. For employees not within a bargaining unit, the school district shall, in a manner consistent with this subdivision, determine the manner in which to implement this subdivision.
  1. An employee who:
    1. voluntarily leaves employment shall be paid on the last regular pay day, or if there is no regular pay day, on the following Friday;
    2. is discharged from employment shall be paid within 72 hours of discharge;
    3. is absent from his or her regular place of employment on the employer's regular scheduled date of wages or salary payment shall be entitled to payment upon demand.
  2. With the written authorization of an employee, an employer may pay wages due the employee by any of the following methods:
    1. Deposit through electronic funds transfer or other direct deposit systems to a checking, savings, or other deposit account maintained by or for the employee in any financial institution within or without the State.
    2. Credit to a payroll card account directly or indirectly established by an employer in a federally insured depository institution to which electronic fund transfers of the employee's wages, salary, or other employee compensation is made on a recurring basis, other than a checking, savings, or other deposit account described in subdivision (1) of this subsection, provided all the following:
      1. The employer provides the employee written disclosure in plain language, in at least 10-point type of both the following:
        1. All the employee's wage payment options.
        2. The terms and conditions of the payroll card account option, including a complete list of all known fees that may be deducted from the employee's payroll card account by the employer or the card issuer and whether third parties may assess fees in addition to the fees assessed by the employer or issuer.
      2. Copies of the written disclosures required by subdivisions (A) and (F) of this subdivision (c)(2) and by subsection (d) of this section shall be provided to the employee in the employee's primary language or in a language the employee understands.
      3. The employee voluntarily consents in writing to payment of wages by payroll card account after receiving the disclosures described in subdivision (A) of this subdivision (c)(2), and this consent is not a condition of hire or continued employment.
      4. The employer ensures that the payroll card account provides that during each pay period, the employee has at least three free withdrawals from the payroll card, one of which permits withdrawal of the full amount of the balance at a federally insured depository institution or other location convenient to the place of employment.
      5. None of the employer's costs associated with the payroll card account are passed on to the employee, and the employer shall not receive any financial remuneration for using the pay card at the employee's expense.
        1. At least 21 days before any change takes effect, the employer provides the employee with written notice in plain language, in at least 10 point type, of the following: (F) (i) At least 21 days before any change takes effect, the employer provides the employee with written notice in plain language, in at least 10 point type, of the following:
          1. any change to any of the terms and conditions of the payroll card account, including any changes in the itemized list of fees;
          2. the employee's right to discontinue receipt of wages by a payroll card account at any time and without penalty.
        2. The employer may not charge the employee any additional fees until the employer has notified the employee in writing of the changes.
      6. The employer provides the employee the option to discontinue receipt of wages by a payroll card account at any time and without penalty to the employee.
      7. The payroll card issued to the employee shall be a branded-type payroll card that complies with both the following:
        1. Can be used at a PIN-based or a signature-based outlet.
        2. The payroll card agreement prevents withdrawals in excess of the account balance and to the extent possible protects against the account being overdrawn.
          1. The employer ensures that the payroll card account provides one free replacement payroll card per year at no cost to the employee before the card's expiration date. A replacement card need not be provided if the card has been inactive for a period of at least 12 months or the employee is no longer employed by the employer.

            (J) A nonbranded payroll card may be issued for temporary purposes and shall be valid for no more than 60 days.

            (K) The payroll card account shall not be linked to any form of credit, including a loan against future pay or a cash advance on future pay.

            (L) The employer shall not charge the employee an initiation, loading, or other participatory fee to receive wages payable in an electronic fund transfer to a payroll card account, with the exception of the cost required to replace a lost, stolen, or damaged payroll card.

            (M) The employer shall ensure that the payroll card account provides to the employee, upon the employee's written or oral request, one free written transaction history each month which includes all deposits, withdrawals, deductions, or charges by any entity from or to the employee's payroll card account for the preceding 60 days. The employer shall also ensure that the account allows the employee to elect to receive the monthly transaction history by electronic mail.

    1. If a payroll card account is established with a financial institution as an account that is individually owned by the employee, the employer's obligations and the protections afforded under subsection (c) of this section shall cease 30 days after the employer-employee relationship ends and the employee has been paid his or her final wages. (d) (1)  If a payroll card account is established with a financial institution as an account that is individually owned by the employee, the employer's obligations and the protections afforded under subsection (c) of this section shall cease 30 days after the employer-employee relationship ends and the employee has been paid his or her final wages.
    2. Upon the termination of the relationship between the employer and the employee who owns the individual payroll card account:
      1. the employer shall notify the financial institution of any changes in the relationship between the employer and employee; and
      2. the financial institution holding the individually owned payroll card account shall provide the employee with a written statement in plain language describing a full list of the fees and obligations the employee might incur by continuing a relationship with the financial institution.
  3. The Department of Financial Regulation may adopt rules to implement subsection (c) of this section.

    Amended 1963, No. 198 , § 2; 1977, No. 44 , § 1, eff. April 19, 1977; 1977, No. 244 (Adj. Sess.), § 2, eff. May 1, 1978; 1979, No. 100 (Adj. Sess.), § 1; 2009, No. 115 (Adj. Sess.), § 1, eff. May 21, 2010; 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012; 2011, No. 154 (Adj. Sess.), § 3; 2013, No. 15 , § 2.

History

Source. V.S. 1947, § 8203. 1941, No. 164 , § 1. P.L. § 6614. G.L. § 5852. P.S. § 2700. 1906, No. 117 , § 2.

Revision note. Deleted " - " from the beginning of the catchline to conform catchline to V.S.A. style.

Subsection designations (1)-(4) changed to (a)-(d) and subdivision designations (a)-(c) in subsec. (c) changed to (1)-(3) to conform section to V.S.A. style.

Amendments--2013. Subdiv. (a)(1): Substituted "employer" for "person"; inserted "one or more" preceding "employees".

Subdiv. (a)(2): Substituted "employee or" preceding "employees" twice in the first sentence; and substituted "employer" for 'person".

Amendments--2011 (Adj. Sess.). Subdiv. (a)(2): Act No. 154 substituted "biweekly or semimonthly" for "bi-weekly or semi-monthly".

Subdiv. (a)(3): Added by Act No. 154.

Subsec. (e): Act No. 78 substituted "department of financial regulation" for "department of banking, insurance, securities, and health care administration".

Amendments--2009 (Adj. Sess.) Section amended generally.

Amendments--1979 (Adj. Sess.). Subsec. (b): Amended generally.

Amendments--1977 (Adj. Sess.). Subsec. (a): Inserted "or checks" following "money".

Subsec. (b): Substituted "files" for "shall file" preceding "with the department of" and "labor and industry" for "industrial relations" thereafter.

Subdiv. (c)(2): Substituted "within 72 hours of" for "immediately upon" following "paid".

Subsec. (d): Former subsec. (d) deleted and former subsec. (e) redesignated as subsec. (d).

Subsec. (e): Former subsec. (e) redesignated as subsec. (d).

Amendments--1977. Subsec. (e): Added.

Amendments--1963. Section amended generally.

Application of section to personal care attendants. 1999, No. 152 (Adj. Sess.), § 135, provided in part that personal care attendants are exempt from 21 V.S.A § 342 and shall not be construed as state employees except for purposes of 21 V.S.A. chapters 9 and 17.

2011 Statutory revision 2011, No. 78 (Adj. Sess.), § 2 provides: "The Legislative Council, in its statutory revision authority under 2 V.S.A. § 424, is directed to replace the term 'Commissioner of Banking, Insurance, Securities, and Health Care Administration' in the Vermont Statutes Annotated wherever it appears with the term 'Commissioner of Financial Regulation'; and to replace the term 'Department of Banking, Insurance, Securities, and Health Care Administration' wherever it appears with the term 'Department of Financial Regulation.'"

Cross References

Cross references. Forfeiture of twice the value of unpaid wages, see § 347 of this title.

Form of payment, see § 343 of this title.

Penalty for nonpayment of wages, see § 345 of this title.

ANNOTATIONS

Analysis

1. Construction.

Vermont's wage-payment statute does not contain a good-faith exception, and the court declined to infer one. Stowell v. Action Moving & Storage, Inc., 182 Vt. 98, 933 A.2d 1128 (June 1, 2007).

The plain language of the forfeiture statute covers any violation of the statute governing the payment of wages. Stowell v. Action Moving & Storage, Inc., 182 Vt. 98, 933 A.2d 1128 (June 1, 2007).

2. Constitutionality.

This section is not a deprivation of liberty or property without due process of law, in violation of the Fourteenth Amendment of the federal Constitution, as to a railroad corporation whose charter, and the general law antedating it, provided that the charter shall be subject to amendment, alteration, or repeal as the public good may require; nor is it as to the stockholders of such corporation. Lawrence v. Rutland Railroad, 80 Vt. 370, 67 A. 1091 (1907).

This section is not in contravention of the declaration of the bill of rights that all men are born equally free, and have certain natural rights, among which are acquiring, possessing, and protecting property, nor of the declaration that every member of society "hath a right to be protected in the enjoyment of life, liberty, and property." Lawrence v. Rutland Railroad, 80 Vt. 370, 67 A. 1091 (1907).

3. Withholding wages.

Order directing receiver of bankrupt railroad to withhold 15 percent of wages was in violation of this section. Burke v. Morphy, 109 F.2d 572 (2d Cir.), cert. denied, 310 U.S. 635, 60 S. Ct. 1078, 84 L. Ed. 1404 (1940).

4. Commission payments.

Commission payments are wages for purposes of Vermont's wages-and-medium-of-payment law. Stowell v. Action Moving & Storage, Inc., 182 Vt. 98, 933 A.2d 1128 (June 1, 2007).

Defendant employer violated the statute governing payments to employees leaving employment when it failed to pay any commission on plaintiff truck driver's final long-haul job, thereby risking that plaintiff would bring suit, and that the court would not agree with all of its offsets. Stowell v. Action Moving & Storage, Inc., 182 Vt. 98, 933 A.2d 1128 (June 1, 2007).

Cited. Zablow v. Department of Employment Security, 137 Vt. 8, 398 A.2d 305 (1979); State v. Carpenter, 138 Vt. 140, 412 A.2d 285 (1980); State v. Harty, 147 Vt. 400, 518 A.2d 30 (1986); Lanphear v. Tognelli, 157 Vt. 560, 601 A.2d 1384 (1991); Longariello v. Windham Southwest Supervisory Union, 165 Vt. 573, 679 A.2d 337 (mem.) (1996).

§ 342a. Investigation of complaints of unpaid wages.

  1. An employee or the Department on its own motion may file a complaint that wages have not been paid to an employee, not later than two years from the date the wages were due. The Commissioner shall provide notice and a copy of the complaint to the employer by service, or by certified mail sent to the employer's last known address, together with an order to file a response to the specific allegation in the complaint filed by the employee or the Department with the Department within 10 calendar days of receipt.
  2. The Commissioner shall investigate the complaint, and may examine the employer's records, enter and inspect the employer's business premises, question such employees, subpoena witnesses, and compel the production of books, papers, correspondence, memoranda, and other records necessary and material to investigate the complaint. If a person fails to comply with any lawfully issued subpoena, or a witness refuses to testify to any matter on which he or she may be lawfully interrogated, the Commissioner may seek an order from the Civil Division of the Superior Court compelling testimony or compliance with the subpoena.
  3. If after the investigation wages are found to be due, the Commissioner shall attempt to settle the matter between the employer and employee. If the attempt fails, the Commissioner shall issue a written determination and order for collection, which shall specify the facts and the conclusions upon which the determination is based. The Department shall collect from the employer the amounts due and remit them to the employee. Notice of the determination and the order for collection to the employer shall be provided to all interested parties by certified mail or service.
  4. If the Commissioner determines that the unpaid wages were willfully withheld by the employer, the order for collection may provide that the employer is liable to pay an additional amount not to exceed twice the amount of unpaid wages, one-half of which will be remitted to the employee and one-half of which shall be retained by the Commissioner to offset administrative and collection costs.
  5. Within 30 days after the date of the collection order, the employer or employee may file an appeal from the determination to a departmental administrative law judge. The appeal shall, after notice to the employer and employee, be heard by the administrative law judge within a reasonable time. The administrative law judge shall review the complaint de novo, and after a hearing, the determination and order for collection shall be sustained, modified, or reversed by the administrative law judge. Prompt notice in writing of the decision of the administrative law judge and the reasons for it shall be given to all interested parties.
  6. Notwithstanding any other provision of law, the employer or employee may appeal the decision of the administrative law judge within 30 days by filing a written request with the Employment Security Board. The appeal shall be heard by the Board after notice to the employee and employer. The Board may affirm, modify, or reverse the decision of the administrative law judge solely on the basis of evidence in the record or any additional evidence it may direct to be taken. Prompt notice of the decision of the Board shall be given to the employer and employee in the manner provided by section 1357 of this title. The Board's decision shall be final unless an appeal to the Supreme Court is taken. Testimony given at any hearing upon a complaint of unpaid wages shall be recorded, but the record need not be transcribed unless ordered. The costs of transcription shall be paid by the requesting party.
  7. The Commissioner may enforce a final order for collection under this section within two years of the date of the final order in the Civil Division of the Superior Court.

    Subsection (h) effective until July 1, 2026; see also subsection (h) effective July 1, 2026 set out below. Information obtained from any employer, employee, or witness in the course of investigating a complaint of unpaid wages shall be confidential and shall not be disclosed or open to public inspection in any manner that reveals the employee's or employer's identity or be admissible in evidence in any action or proceeding other than one arising under this subchapter. However, such information may be released to any public official for the purposes provided in subdivision 1314(e)(1) of this title or to the Attorney General in relation to investigations conducted pursuant to section 346 of this subchapter as provided pursuant to the terms of the memorandum of understanding between the Attorney General and the Commissioner of Labor executed pursuant to section 3 of this title.

    Subsection (h) effective July 1, 2026; see also subsection (h) effective until July 1, 2026 set out above. Information obtained from any employer, employee, or witness in the course of investigating a complaint of unpaid wages shall be confidential and shall not be disclosed or open to public inspection in any manner that reveals the employee's or employer's identity or be admissible in evidence in any action or proceeding other than one arising under this subchapter. However, such information may be released to any public official for the purposes provided in subdivision 1314(e)(1) of this title.

    Added 1965, No. 182 ; amended 1977, No. 244 (Adj. Sess.), § 3, eff. May 1, 1978; 1999, No. 119 (Adj. Sess.), § 19, eff. May 18, 2000; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2013, No. 15 , § 3; 2013, No. 173 (Adj. Sess.), § 1; 2019, No. 85 (Adj. Sess.), § 5, eff. Feb. 20, 2020; 2019, No. 85 (Adj. Sess.), § 13, eff. July 1, 2026.

History

Amendments--2019 (Adj. Sess.). Subsec. (h): Act No. 85, § 5, eff. February 20, 2020, added "or to the Attorney General in relation to investigations conducted pursuant to section 346 of this subchapter as provided pursuant to the terms of the memorandum of understanding between the Attorney General and the Commissioner of Labor executed pursuant to section 3 of this title" to the end of the last sentence.

Subsec. (h): Act No. 85, § 13, eff. July 1, 2026, deleted "or to the Attorney General in relation to investigations conducted pursuant to section 346 of this subchapter as provided pursuant to the terms of the memorandum of understanding between the Attorney General and the Commissioner of Labor executed pursuant to section 3 of this title" at the end of the last sentence.

Amendments--2013 (Adj. Sess.). Subsec. (a): Inserted "a response to the specific allegation in the complaint filed by the employee or the Department" following "with an order to file".

Amendments--2013. Section amended generally.

Amendments--2005 (Adj. Sess.) Subsec. (a): Substituted "Department of Labor" for "department of labor and industry" and "Commissioner of Labor" for "commissioner of labor and industry".

Amendments--1999 (Adj. Sess.). Section amended generally.

Amendments--1977 (Adj. Sess.). Substituted "labor and industry" for "industrial relations" in two places and added the second sentence.

§ 342b. Repealed. 1999, No. 119 (Adj. Sess.), § 20, eff. May 18, 2000.

History

Former § 342b. Former § 342b, relating to employees covered, was derived from 1965, No. 182 .

§ 343. Form of payment.

An employer shall not pay employees with any form of evidence of indebtedness, including all scrip, vouchers, due bills, or store orders, unless the employer is in compliance with one or both of the following:

  1. The employer is a cooperative corporation in which the employee is a stockholder, in which case, the cooperative corporation shall, upon request of any shareholding employee, pay the shareholding employee as provided in section 342 of this title.
  2. Payment is made by check as defined in Title 9A or by an electronic fund transfer as provided in section 342 of this title.

    Amended 1977, No. 244 (Adj. Sess.), § 4, eff. May 1, 1978; 2009, No. 115 (Adj. Sess.), § 1, eff. May 21, 2010.

History

Source. V.S. 1947, § 8204. 1941, No. 164 , § 2. P.L. § 6615. G.L. § 5853. P.S. § 2701. 1906, No. 117 , § 3.

Revision note. Deleted " - " from the beginning of the catchline to conform catchline to V.S.A. style.

Amendments--2009 (Adj. Sess.) Section amended generally.

Amendments--1977 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Forfeiture of twice the value of improperly paid wages, see § 347 of this title.

Penalty for improper payment of wages, see § 345 of this title.

ANNOTATIONS

1. Evidence of indebtedness.

Where golf course employee and owner of course agreed that employee would take her pay in merchandise from the pro shop instead of by check, at no time did her account at the shop show a credit balance as she always charged more items against her salary than her salary covered, and employee quit while owing a balance, employer's suit for the balance was not barred by this section; as employee's account always reflected more purchases than her wages could cover, employee was in effect drawing advances on her salary. Caldwell v. Shover, 139 Vt. 359, 428 A.2d 1131 (1981).

Cited. State v. Carpenter, 138 Vt. 140, 412 A.2d 285 (1980).

§ 344. Assignment of future wages.

An assignment of future wages payable under the provisions of section 342 of this title shall not be valid, if made to the employer from whom such wages are to become due, or to anyone in behalf of such employer, or if made or procured to be made to anyone for the purpose of relieving such employer from the obligation to pay under the provisions of section 342. Such employer shall not require an agreement from an employee to accept wages at any other period as a condition of employment.

History

Source. V.S. 1947, § 8205. 1941, No. 164 , § 3. P.L. § 6616. G.L. § 5854. P.S. § 2702. 1906, No. 117 , § 4.

Revision note. Deleted " - " from the beginning of the catchline to conform catchline to V.S.A. style.

Cross References

Cross references. Assignment of wages in consumer contract, see 9 V.S.A. § 2456.

Loan secured by assignment of wages, see 8 V.S.A. §§ 2234-2236a.

Support wage assignment, see 15 V.S.A. § 780 et seq.

Trustee process against assignment of future earnings, see 12 V.S.A. § 3022.

ANNOTATIONS

1. Withholding wages.

Order directing receiver of bankrupt railroad to withhold 15 percent of wages was in violation of this section. Burke v. Morphy, 109 F.2d 572 (2d Cir.), cert. denied, 310 U.S. 635, 60 S. Ct. 1078, 84 L. Ed. 1404 (1940).

§ 345. Nonpayment of wages and benefits.

  1. Each employer who violates section 342, 343, 482, or 483 of this title shall be fined not more than $5,000.00. Where the employer is a corporation, the president or other officers who have control of the payment operations of the corporation shall be considered employers and liable to the employee for actual wages due when the officer has willfully and without good cause participated in knowing violations of this chapter.
  2. In addition to any other penalty or punishment otherwise prescribed by law, any employer who, pursuant to an oral or written employment agreement, is required to provide benefits to an employee shall be liable to the employee for actual damages caused by the failure to pay for the benefits, and where the failure to pay is knowing and willful and continues for 30 days after the payments are due shall be assessed a civil penalty by the Commissioner of not more than $5,000.00.
  3. The Commissioner may enforce collection of the fines assessed under this section in the Civil Division of the Superior Court.

    Amended 1963, No. 188 , § 1; 2013, No. 15 , § 4; 2015, No. 69 (Adj. Sess.), § 5, eff. Jan. 1, 2017; 2017, No. 74 , § 33.

History

Source. V.S. 1947, § 8206. 1941, No. 164 , § 4. P.L. § 6617. G.L. § 5855. P.S. § 2703. 1906, No. 117 , § 5.

Revision note. Deleted " - " from the beginning of the catchline to conform catchline to V.S.A. style.

Amendments--2017. Subsec. (a): Substituted "section 342, 343, 482, or 483" for "sections 342, 343, 482, and 483" following "violates" in the first sentence.

Amendments--2015 (Adj. Sess.). Subsec. (a): Substituted "342, 343, 482, and 483" for "342 and 343" following "sections".

Amendments--2013. Section heading: Deleted "Penalty for" preceding "nonpayment" and inserted "and benefits" following "wages".

Subsec. (a): Added the subsection designation and rewrote the subsection.

Subsecs. (b), (c): Added.

Amendments--1963. Section amended generally.

Effective date of amendment of subsection (a). 2015, No. 69 (Adj. Sess.) § 8(a)(2) provides in part that the amendment to this subsection "shall take effect on January 1, 2017, except that an employer that has five or fewer employees who are employed for an average of no less than 30 hours per week shall not be subject to the provisions of 21 V.S.A. chapter 5, subchapter 4b until January 1, 2018."

In addition, 2015, No. 69 (Adj. Sess.), § 8(b)(1)-(b)(2) provides:

"(b)(1) An employer may require for its existing employees on January 1, 2017 a waiting period of up to one year. The waiting period pursuant to this subsection shall begin on January 1, 2017 and shall end on or before December 31, 2017. During this waiting period, an employee shall accrue earned sick time pursuant to 21 V.S.A. § 482, but shall not be permitted to use the earned sick time until after he or she has completed the waiting period.

"(2) An employer that has five or fewer employees who are employed for an average of no less than 30 hours per week may require for its existing employees on January 1, 2018 a waiting period of up to one year. The waiting period pursuant to this subsection shall begin on January 1, 2018 and shall end on or before December 31, 2018. During this waiting period, an employee shall accrue earned sick time pursuant to 21 V.S.A. § 482, but shall not be permitted to use the earned sick time until after he or she has completed the waiting period."

ANNOTATIONS

Analysis

1. Constitutionality.

This section does not violate equal protection by requiring a higher standard of employers than of corporate officers, as there is a rational basis for the classification, in that employers have complete control over their business, whereas corporate officers are not similarly powerful, are limited by a board of directors, and often those responsible for payment of compensation are not the ones making the decisions which determine whether money will be on hand to pay the compensation. State v. Carpenter, 138 Vt. 140, 412 A.2d 285 (1980).

This section allows imprisonment for debt, an unenforceable penalty under chapter II, section 40 of the state constitution; but prosecution would not be dismissed, as the question whether provision for fine violated constitution was not briefed or argued and must await proper presentation before supreme court at another time. State v. Carpenter, 138 Vt. 140, 412 A.2d 285 (1980).

2. Employers.

Sole corporate owner-operators are included within the definition of "employer" as used in this section. State v. Harty, 147 Vt. 400, 518 A.2d 30 (1986).

3. Fraud.

The requirement of fraud in this section applies only to those individuals charged in their capacity as corporate officers who have no authority to control the funds of the corporation. State v. Harty, 147 Vt. 400, 518 A.2d 30 (1986).

Cited. Caldwell v. Shover, 139 Vt. 359, 428 A.2d 1131 (1981).

§§ 345a Repealed. 2013, No. 15, § 5.

History

Former § 345a. Former § 345a, relating to failure of any employer to provide benefits for employees, was derived from 1963, No. 188 , § 2 and amended by 1977, No. 244 (Adj. Sess.), § 5.

§ 346. Enforcement by Attorney General; employee misclassification. Section 346 repealed effective July 1, 2026.

  1. Following the referral of a complaint by the Commissioner of Labor pursuant to the provisions of section 3 of this title, the Attorney General may investigate a complaint that an employer has committed a willful, substantial, or systemic violation of section 342, 343, 348, 482, or 483 of this chapter by misclassifying an employee as an independent contractor and may enforce those provisions by restraining prohibited acts, seeking civil penalties, obtaining assurances of discontinuance, and conducting civil investigations in accordance with the procedures established in 9 V.S.A. §§ 2458 -2461 as though the misclassification of an employee is an unfair act in commerce. Any employer complained against shall have the same rights and remedies as specified in 9 V.S.A. §§ 2458 -2461. The Superior Court may impose the same civil penalties and investigation costs and order other relief to the State of Vermont or an aggrieved employee for the misclassification of an employee and any related violations of the provisions of this chapter as they are authorized to impose or order under the provisions of 9 V.S.A. §§ 2458 and 2461 in an unfair act in commerce. In addition, the Superior Court may order restitution of wages or other benefits on behalf of an employee and may order reinstatement and other appropriate relief on behalf of an employee.
    1. The Attorney General shall share information and coordinate investigatory and enforcement resources with the Departments of Financial Regulation, of Labor, and of Taxes pursuant to the provisions of section 3 of this title. (b) (1)  The Attorney General shall share information and coordinate investigatory and enforcement resources with the Departments of Financial Regulation, of Labor, and of Taxes pursuant to the provisions of section 3 of this title.
    2. Upon receiving notice that the Attorney General has determined that an employer has committed a violation of section 342, 343, 348, 482, or 483 of this chapter by misclassifying an employee as an independent contractor, the Commissioners of Financial Regulation and of Taxes shall review whether the employer is in compliance with the insurance or tax laws that are under their jurisdiction.

      Added 2019, No. 85 (Adj. Sess.), § 4, eff. Feb. 20, 2020; amended 2021, No. 20 , § 216; repealed on July 1, 2026 by 2019, No. 85 (Adj. Sess.), § 11(b).

History

Amendments--2021. Subdiv. (b)(2): Substituted "employer" for "employing unit" preceding "has committed a violation".

Prior law. Former § 346, relating to payment and redemption of checks, slips, due bills, etc., was derived from V.S. 1947, § 8207; P.L. § 6618; G.L. § 5856; P.S. § 2704; and 1902, No. 158 , § 1 and was repealed by 1977, No. 244 (Adj. Sess.), § 9, eff. May 1, 1978.

§ 347. Forfeiture.

An employer who violates section 342 or 343 of this title shall forfeit to the individual injured twice the value thereof, to be recovered in a civil action, and all costs and reasonable attorney's fees. However, an action may not be maintained under this section unless at the time the action is brought, the wages remain unpaid or improperly paid.

Amended 1977, No. 244 (Adj. Sess.), § 6, eff. May 1, 1978; 1979, No. 100 (Adj. Sess.), § 2; 2013, No. 15 , § 6.

History

Source. V.S. 1947, § 8208. P.L. § 6619. G.L. § 5857. P.S. § 2705. 1902, No. 158 , § 2.

Revision note. Substituted "a civil action" for "an action of tort on this statute" in the first sentence to conform reference to V.R.C.P. 2 pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments--2013. Substituted "An employer" for "A person" preceding "who".

Amendments--1979 (Adj. Sess.). Inserted "342 or" preceding "343" in the first sentence, added "and all costs and reasonable attorney's fees" following "statute" at the end of that sentence and added the second sentence.

Amendments--1977 (Adj. Sess.). Deleted " - " from the beginning of the catchline and substituted "who violates section 343" for "partnership or corporation refusing to redeem such obligations, as provided in section 346" preceding "of this title" and "individual" for "person" preceding "injured".

ANNOTATIONS

1. Application.

The purpose of this section is fulfilled if plaintiff has a claim that some wages remain unpaid at the time he brings suit. It is unreasonable and unnecessary to any purpose of the statute to require him to wait to bring suit until all possible damages have accrued. Stowell v. Action Moving & Storage, Inc., 182 Vt. 98, 933 A.2d 1128 (June 1, 2007).

Where it was found that the practice was to pay plaintiff truck driver a commission, up to the amount of a claims reserve, about six weeks after a long haul was completed, under that practice, defendant owed plaintiff his commission on the date plaintiff brought suit. Thus, the action could be "maintained" under this section when plaintiff sued. Stowell v. Action Moving & Storage, Inc., 182 Vt. 98, 933 A.2d 1128 (June 1, 2007).

The plain language of this section covers any violation of the statute governing the payment of wages. Stowell v. Action Moving & Storage, Inc., 182 Vt. 98, 933 A.2d 1128 (June 1, 2007).

Double recovery provision did not apply in minimum wage action brought by employee against small motel owners; provision applied only to violations of timeliness and form of wage requirements, not to underpayment of wages. Lanphear v. Tognelli, 157 Vt. 560, 601 A.2d 1384 (1991).

§ 348. Retaliation prohibited.

  1. An employer shall not discharge or in any other manner retaliate against an employee because:
    1. the employee lodged a complaint of a violation of this subchapter;
    2. the employee has cooperated with the Commissioner in an investigation of a violation of this subchapter; or
    3. the employer believes that the employee may lodge a complaint or cooperate in an investigation of a violation of this subchapter.
  2. Any person aggrieved by a violation of this section may bring an action in the Civil Division of the Superior Court seeking compensatory and punitive damages or equitable relief, including restraint of prohibited acts, restitution of wages or benefits, reinstatement, costs, reasonable attorney's fees, and other appropriate relief.

    Added 2013, No. 15 , § 8.

Subchapter 3. Minimum Wages

ANNOTATIONS

Cited. United Paperworkers Local 340 v. Specialty Paperboard, Inc., 999 F.2d 51 (2d Cir. 1993).

§ 381. Declaration of policy.

It is the declared public policy of the State of Vermont that workers employed in any occupation should receive wages sufficient to provide adequate maintenance and to protect their health, and to be fairly commensurate with the value of the services rendered.

History

Source. 1957, No. 303 , § 1.

§ 382. Coverage.

Employers employing two employees or more are covered by this subchapter.

History

Source. 1957, No. 303 , § 2.

§ 383. Definitions.

Terms used in this subchapter have the following meanings, unless a different meaning is clearly apparent from the language or context:

  1. "Commissioner," the Commissioner of Labor or designee;
  2. "Employee," any individual employed or permitted to work by an employer except:
    1. any individual employed in agriculture;
    2. any individual employed in domestic service in or about a private home;
    3. any individual employed by the United States;
    4. any individual employed in the activities of a public supported nonprofit organization, except laundry employees, nurses' aides, or practical nurses;
    5. any individual employed in a bona fide executive, administrative, or professional capacity;
    6. any individual making home deliveries of newspapers or advertising;
    7. taxi-cab drivers;
    8. outside salespersons; and
    9. students working during all or any part of the school year or regular vacation periods.
  3. "Occupation," an industry, trade, or business or branch thereof or class of work in which workers are gainfully employed.
  4. [Repealed.]

    Amended 1959, No. 109 , eff. April 14, 1959; 1967, No. 177 , § 1, eff. April 17, 1967; 1977, No. 244 (Adj. Sess.), § 7, eff. May 1, 1978; 1985, No. 80 , § 2; 1993, No. 227 (Adj. Sess.), § 34; 2001, No. 47 , § 1; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Source. 1957, No. 303 , § 3.

Amendments--2005 (Adj. Sess.) Subdiv. (1): Substituted "Commissioner of Labor" for "commissioner of labor and industry".

Amendments--2001. Subdiv. (1): Deleted "his" preceding "designee".

Subdiv. (3): Substituted "in" for "therein" following "class of work" and made a minor change in punctuation.

Subdiv. (4): Deleted.

Amendments--1993 (Adj. Sess.). Subdiv. (2)(C): Deleted "or by the state" following "United States".

Subdiv. (2)(F): Substituted "any individual" for "persons" preceding "making".

Amendments--1985. Subdiv. (2)(F): Amended generally.

Subdiv. (2)(H): Substituted "salespersons, and" for "salesmen".

Subdiv. (2)(I): Deleted "and" following "periods".

Subdiv. (2)(J): Deleted.

Amendments--1977 (Adj. Sess.). Subdiv. (1): Substituted "labor and industry or his designee" for "industrial relations" following "commissioner of".

Subdiv. (2)(C): Deleted "or any political subdivision thereof" following "state".

Subdiv. (2)(I): Added "and" following "periods".

Subdiv. (2)(J): Amended generally.

Amendments--1967. Subdiv. (2)(D): Deleted "or those subject to the federal fair labor standards act of 1938 as amended" following "practical nurses".

Amendments--1959. Subdiv. (2)(I): Substituted "working during all or any part of the school year or regular vacation periods" for "attending school and working part time" following "students".

§ 384. Employment; wages.

    1. An employer shall not employ any employee at a rate of less than $10.96. Beginning on January 1, 2021, an employer shall not employ any employee at a rate of less than $11.75. Beginning on January 1, 2022, an employer shall not employ any employee at a rate of less than $12.55, and on each subsequent January 1, the minimum wage rate shall be increased by five percent or the percentage increase of the Consumer Price Index, CPI-U, U.S. city average, not seasonally adjusted, or successor index, as calculated by the U.S. Department of Labor or successor agency for the 12 months preceding the previous September 1, whichever is smaller, but in no event shall the minimum wage be decreased. The minimum wage shall be rounded off to the nearest $0.01. (a) (1)  An employer shall not employ any employee at a rate of less than $10.96. Beginning on January 1, 2021, an employer shall not employ any employee at a rate of less than $11.75. Beginning on January 1, 2022, an employer shall not employ any employee at a rate of less than $12.55, and on each subsequent January 1, the minimum wage rate shall be increased by five percent or the percentage increase of the Consumer Price Index, CPI-U, U.S. city average, not seasonally adjusted, or successor index, as calculated by the U.S. Department of Labor or successor agency for the 12 months preceding the previous September 1, whichever is smaller, but in no event shall the minimum wage be decreased. The minimum wage shall be rounded off to the nearest $0.01.
    2. An employer in the hotel, motel, tourist place, and restaurant industry shall not employ a service or tipped employee at a basic wage rate less than one-half the minimum wage. As used in this subsection, "a service or tipped employee" means an employee of a hotel, motel, tourist place, or restaurant who customarily and regularly receives more than $120.00 per month in tips for direct and personal customer service.
    3. If the minimum wage rate established by the U.S. government is greater than the rate established for Vermont for any year, the minimum wage rate for that year shall be the rate established by the U.S. government.
  1. Notwithstanding subsection (a) of this section, an employer shall not pay an employee less than one and one-half times the regular wage rate for any work done by the employee in excess of 40 hours during a workweek.  However, this subsection shall not apply to:
    1. Employees of any retail or service establishment.  A "retail or service establishment" means an establishment 75 percent of whose annual volume of sales of goods or services, or of both, is not for resale and is recognized as retail sales or services in the particular industry.
    2. Employees of an establishment that is an amusement or recreational establishment, if:
      1. it does not operate for more than seven months in any calendar year; or
      2. during the preceding calendar year its average receipts for any six months of that year were not more than one-third of its average receipts for the other six months of the year.
    3. Employees of an establishment that is a hotel, motel, or restaurant.
    4. Employees of hospitals, public health centers, nursing homes, maternity homes, therapeutic community residences, and residential care homes as those terms are defined in Title 18, provided:
      1. the employer pays the employee on a biweekly basis; and
      2. the employer files an election to be governed by this section with the Commissioner; and
      3. the employee receives not less than one and one-half times the regular wage rate for any work done by the employee:
        1. in excess of eight hours for any workday; or
        2. in excess of 80 hours for any biweekly period.
    5. Those employees of a business engaged in the transportation of persons or property to whom the overtime provisions of the federal Fair Labor Standards Act do not apply, but shall apply to all other employees of such businesses.
    6. Those employees of a political subdivision of this State.
    7. State employees who are covered by the federal Fair Labor Standards Act.
  2. However, an employer may deduct from the rates required in subsections (a) and (b) of this section the amounts for board, lodging, apparel, rent, or utilities paid or furnished or other items or services or such other conditions or circumstances as may be usual in a particular employer-employee relationship, including gratuities as determined by the wage order made under this subchapter.
  3. For the purposes of earned sick time, an employer shall comply with the provisions required under subchapter 4B of this chapter.

    Amended 1959, No. 32 , eff. Sept. 1, 1959; 1965, No. 35 , § 1, eff. Oct. 1, 1965; 1967, No. 177 , § 2, eff. April 17, 1967; 1969, No. 67 , §§ 1, 2, eff. April 17, 1969; 1969, No. 190 (Adj. Sess.); 1971, No. 203 (Adj. Sess.); 1973, No. 265 (Adj. Sess.), eff. April 16, 1974; 1977, No. 244 (Adj. Sess.), § 8, eff. May 1, 1978; 1985, No. 80 , § 1; 1987, No. 181 (Adj. Sess.); 1989, No. 131 (Adj. Sess.), § 1, eff. March 29, 1990; 1993, No. 227 (Adj. Sess.), §§ 33, 35; 1995, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 1997; 1997, No. 4 , § 1; 1999, No. 21 , § 1, eff. May 13, 1999; 1999, No. 119 (Adj. Sess.), § 7, eff. May 18, 2000; 2003, No. 67 , § 25a; 2005, No. 82 , § 1; 2007, No. 78 , § 1; 2009, No. 54 , § 31; eff. June 1, 2009; 2013, No. 176 (Adj. Sess.), § 1, eff. Jan. 1, 2015; 2015, No. 69 (Adj. Sess.), § 3, eff. Jan. 1, 2017; 2019, No. 86 (Adj. Sess.), § 1.

History

Source. 1957, No. 303 , § 4.

Reference in text. The Federal Fair Labor Standards Act, referred to in subdivs. (b)(5) and (7), is codified as 29 U.S.C. § 201 et seq.

Revision note. In the first sentence of subsec. (b), inserted "of this section" following "subsection (a)" to conform reference to V.S.A. style.

In the introductory clause of subdiv. (b)(4), substituted "residential" for "community" preceding "care homes" to conform reference to chapter 45 of Title 18, as amended by 1985, No. 151 (Adj. Sess.).

Amendments--2019 (Adj. Sess.) Subsec. (a): Added the (a)(1) through (a)(3) subdiv. designations; and amended subdiv. (a)(1) generally.

Amendments--2015 (Adj. Sess.). Subsec. (d): Added.

Amendments--2013 (Adj. Sess.). Subsec. (a): Substituted "any employee" for "an employee" following "An employer shall not employ", "$9.15. Beginning January 1, 2016, an employer shall not employ any employee at a rate of less than $9.60. Beginning January 1, 2017, an employer shall not employ any employee at a rate of less than $10.00. Beginning January 1, 2018, an employer shall not employ any employee at a rate of less than $10.50," for "$7.25," following "at a rate of less than", "2019" for "2007" following "January 1,", "one-half the minimum wage" for "$3.65 an hour, and beginning January 1, 2008, and on each January 1 thereafter, this basic tip wage rate shall be increased at the same percentage rate as the minimum wage rate" at the end of the fourth sentence, "As used in" for "For the purposes of" at the beginning of the fifth sentence.

Amendments--2009. Substituted "Employment; wages" for "Prohibition of employment" in the section heading.

Subsec. (a): Inserted "of" following "rate" preceding "less than $7.25" near the beginning, and added "but in no event shall the minimum wage be decreased" at the end of the first sentence.

Subdiv. (b)(7): Substituted "employees who are" for "employees, who shall be".

Subsec. (c): Made minor punctuation changes.

Amendments--2007. Subsec. (a): Deleted "$7.00 an hour and, beginning January 1, 2006, at a rate less than" following "less than" in the first sentence; added "and beginning January 1, 2008, and on each January 1 thereafter, this basic tip wage rate shall be increased at the same percentage rate as the minimum wage rate" at the end of the second sentence; and substituted "$120.00" for "$30.00" preceding "per month" in the third sentence.

Amendments--2005 Subsec. (a): Amended generally.

Amendments--2003. Subsec. (a): Amended generally.

Amendments--1999 (Adj. Sess.). Subsec. (a): Deleted "at a rate less than $5.25 an hour, and after September 30, 1999" following "an employee" and added "and after December 31, 2000, at a rate less than $6.25 an hour" at the end of the first sentence.

Amendments--1999. Subsec. (a): Deleted "$5.00 an hour and after June 30, 1997, at a rate less than $5.15 an hour and after September 30, 1997, at a rate less than" preceding "$5.25 an hour" and inserted "and after September 30, 1999, at a rate less than $5.75 an hour" thereafter at the end of the first sentence.

Amendments--1997 Subsec. (a): Amended generally.

Amendments--1995 (Adj. Sess.) Subsec. (a): Amended generally.

Amendments--1993 (Adj. Sess.). Subsec. (a): Rewrote the first sentence and substituted "if" for "beginning July 1, 1989" preceding "if the minimum" in the second sentence.

Subsec. (b): Added subdiv. (7).

Amendments--1989 (Adj. Sess.). Subsec. (a): Substituted "April 1, 1990" for "July 1, 1990" following "$3.75 an hour; after" in the first sentence.

Amendments--1987 (Adj. Sess.). Subsec. (a): Deleted "and" following "$3.55 an hour" and added "after July 1, 1989 at a rate less than $3.75 an hour; after July 1, 1990 at a rate less than $3.85 per hour; and after July 1, 1991 at a rate less than $3.95 an hour" following "$3.65 an hour" in the first sentence and rewrote the second sentence.

Amendments--1985. Subsec. (a): Amended generally.

Amendments--1977 (Adj. Sess.). Subsec. (a): Amended generally.

Subdiv. (b)(4): Amended generally.

Subdiv. (b)(6): Amended generally.

Subsec. (c): Inserted "of this section" following "subsections (a) and (b)" and "rent or utilities paid or furnished" following "apparel".

Subsec. (d): Deleted.

Amendments--1973 (Adj. Sess.). Subsec. (a): Added the second sentence.

Amendments--1971 (Adj. Sess.). Subsec. (a): Amended generally.

Amendments--1969 (Adj. Sess.). Subsec. (d): Inserted "of this title" following "sections 383(D) and 384(b)(4)" and "nursing home or other institution primarily engaged in the care of the sick, the aged, the mentally ill or mentally defective" following "hospital".

Amendments--1969. Subsec. (a): Substituted "$1.60" for "$1.40" preceding "an hour" and added the second sentence.

Subsec. (b): Substituted "40" for "48" preceding "hours" in the first sentence.

Amendments--1967. Section amended generally.

Amendments--1965. Substituted "$1.25" for "$1.00" preceding "per hour".

Amendments--1959. Substituted "$1.00" for "seventy-five cents" preceding "per hour".

Minimum wage order; adoption of rules. 1997, No. 4 , § 2, provided: "The Commissioner of Labor and Industry shall adopt rules to be effective July 1, 1997, to amend the minimum wage order affecting the hotel, motel, tourist place and restaurant industry by making the tip credit rate 45 percent of the state minimum wage rate, thereby establishing the state basic wage rate as $2.83 after June 30, 1997, and $2.89 after September 30, 1997".

Repeal. 1997, No. 4 , § 2 (Rule Change; Minimum Wage Order; Tip Credit Rate), is repealed effective January 1, 2004 pursuant to 2003, No. 67 , § 25b.

Effective date of enactment of subsection (d). 2015, No. 69 (Adj. Sess.) § 8(a)(2) provides in part that the amendment to this subsection "shall take effect on January 1, 2017, except that an employer that has five or fewer employees who are employed for an average of no less than 30 hours per week shall not be subject to the provisions of 21 V.S.A. chapter 5, subchapter 4b until January 1, 2018."

In addition, 2015, No. 69 (Adj. Sess.), § 8(b)(1)-(b)(2) provides:

"(b)(1) An employer may require for its existing employees on January 1, 2017 a waiting period of up to one year. The waiting period pursuant to this subsection shall begin on January 1, 2017 and shall end on or before December 31, 2017. During this waiting period, an employee shall accrue earned sick time pursuant to 21 V.S.A. § 482, but shall not be permitted to use the earned sick time until after he or she has completed the waiting period.

"(2) An employer that has five or fewer employees who are employed for an average of no less than 30 hours per week may require for its existing employees on January 1, 2018 a waiting period of up to one year. The waiting period pursuant to this subsection shall begin on January 1, 2018 and shall end on or before December 31, 2018. During this waiting period, an employee shall accrue earned sick time pursuant to 21 V.S.A. § 482, but shall not be permitted to use the earned sick time until after he or she has completed the waiting period."

Cross References

Cross references. Minimum wage rates established by United States, see 29 U.S.C. § 206.

ANNOTATIONS

Analysis

1. Construction with other law.

Sovereign immunity barred State employees' collective action for alleged violations of 29 U.S.C.S. § 207(a)(1) because the State did not waive it, as a reference to the Fair Labor Standards Act, 29 U.S.C.S. § 201 et seq., in 21 V.S.A. § 384(b)(7) was not an express waiver Vermont law required. Coniff v. Vermont, - F. Supp. 2d - (D. Vt. Sept. 30, 2013), aff'd, 807 F.3d 478 (2d Cir. 2015).

In a former employee's suit asserting overtime compensation claims under the Fair Labor Standards Act, 29 U.S.C.S. §§ 201-219, the court had supplemental jurisdiction pursuant to 28 U.S.C.S. § 1367(a) over the employee's claims under Vermont's Minimum Wage & Overtime Law, 21 V.S.A. § 384, because there was a common nucleus of operative fact between the claims, all of which involved overtime pay. Connolly v. Smugglers' Notch Mgmt. Co., - F. Supp. 2d - (D. Vt. Nov. 5, 2009).

An employer is permitted to deduct from minimum wage an amount for lodging, utilities, and other items which are usual in a particular industry, as determined by wage order initiated by wage board. Lanphear v. Tognelli, 157 Vt. 560, 601 A.2d 1384 (1991).

2. Administrative wage order.

Court at trial for minimum wage violation erred in disregarding plain meaning of administrative wage order outlining permissible deduction from minimum wage and substituting opinion of department of labor and industry officials, where defendant motel owners advanced no reason for invalidity of wage order. Lanphear v. Tognelli, 157 Vt. 560, 601 A.2d 1384 (1991).

Although department of labor and industry officials, in declining to enforce wage order in minimum wage dispute, may have had good reason to doubt wisdom of fixed, artificially low allowance for lodging provided by employer, proper remedy was modification of regulation, not ad hoc disregard of it. Lanphear v. Tognelli, 157 Vt. 560, 601 A.2d 1384 (1991).

3. State employees.

Because State employees are generally "covered by" the Fair Labor Standards Act, the Vermont minimum-wage statute did not provide appellant, a State employee, with minimum wage-and-hour rights or a statutory private right of action to enforce those rights. Flint v. Department of Labor, 205 Vt. 558, 177 A.3d 1080 (2017).

§ 385. Administration.

The Commissioner and the Commissioner's authorized representatives have full power and authority for all the following:

  1. To enforce and administer the provisions of this chapter, including the power to conduct investigations and take any other action considered necessary or suitable for the administration of this chapter. In the discharge of duties under this chapter, the Commissioner may administer oaths, take depositions, certify to official acts, subpoena witnesses, and compel production of any documents and records necessary and material to the administration of this chapter.
  2. To enter and inspect any place of business or employment, question any employees, and investigate any records, facts, conditions, or matters that are deemed appropriate and that in any way appertain to or have a bearing upon the question of wages due under the provisions of this chapter.
  3. To require from any employer full and correct statements in writing of the wages paid to all employees employed by that employer necessary to investigate and enforce the provisions of this chapter.
  4. To recommend and determine the amount of deductions for board, lodging, or other items or services supplied by the employer or any other conditions or circumstances as may be usual in a particular employer-employee relationship, including gratuities; provided, however, that in no case shall the total remuneration received by an employee, including wages, board, lodging, or other items or services supplied by the employer, including gratuities, be less than the minimum wage rate set forth in section 384 of this title. No deduction may be made for the care, cleaning, or maintenance of required apparel. No deduction for required apparel shall be made without the employee's express written authorization and the deduction shall not:
    1. reduce the total remuneration received by an employee below the hourly minimum wage;
    2. include any administrative fees or charges; or
    3. amend, nullify, or violate the terms and conditions of any collective bargaining agreement.
  5. To recommend a suitable scale of rates for learners, apprentices, and persons with disabilities, which may be less than the regular minimum wage rate for experienced workers without disabilities.

    Amended 2001, No. 47 , § 2; 2005, No. 212 (Adj. Sess.), § 10, eff. May 29, 2006; 2007, No. 182 (Adj. Sess.), § 10, eff. June 2, 2008.

History

Source. 1957, No. 303 , § 5.

Amendments--2007 (Adj. Sess.). Subdiv. (4): Amended generally.

Amendments--2005 (Adj. Sess.). Section amended generally.

Amendments--2001. Substituted "any" for "such" preceding "employer" and "that employer" for "him" following "employed by" in subdivision (3), amended generally former subdivision (4), deleted subdivision (4)(A) designation, and redesignated (4)(B) as (5).

ANNOTATIONS

1. Deductions.

An employer is permitted to deduct from minimum wage an amount for lodging, utilities, and other items which are usual in a particular industry, as determined by wage order initiated by wage board. Lanphear v. Tognelli, 157 Vt. 560, 601 A.2d 1384 (1991).

§ 386. Investigations.

The Commissioner may, and on a petition of 50 or more residents of the State shall, make an investigation of any industry, business, occupation, or employment as set forth in section 385 of this title, to ascertain whether any violations of this subchapter have occurred.

History

Source. 1957, No. 303 , § 6.

§§ 388-390a. Repealed. 1995, No. 188 (Adj. Sess.), § 4.

History

Former §§ 388-389. Former § 388, relating to the powers of the wage board, was derived from 1957, No. 303 , § 8.

Former § 389, relating to the scope of assistance provided by the Commissioner to the wage board, was derived from 1957, No. 303 , § 9.

§ 387. Enforcement by Attorney General; employee misclassification. Section 387 repealed effective July 1, 2026.

  1. Following the referral of a complaint by the Commissioner of Labor pursuant to the provisions of section 3 of this title, the Attorney General may investigate a complaint that an employer has committed a willful, substantial, or systemic violation of this subchapter by misclassifying an employee as an independent contractor and may enforce the provisions of this subchapter by restraining prohibited acts, seeking civil penalties, obtaining assurances of discontinuance, and conducting civil investigations in accordance with the procedures established in 9 V.S.A. §§ 2458 -2461 as though the misclassification of an employee is an unfair act in commerce. Any employer complained against shall have the same rights and remedies as specified in 9 V.S.A. §§ 2458 -2461. The Superior Court may impose the same civil penalties and investigation costs and order other relief to the State of Vermont or an aggrieved employee for the misclassification of an employee and any related violations of the provisions of this chapter as they are authorized to impose or order under the provisions of 9 V.S.A. §§ 2458 and 2461 in an unfair act in commerce. In addition, the Superior Court may order restitution of wages or other benefits on behalf of an employee and may order reinstatement and other appropriate relief on behalf of an employee.
    1. The Attorney General shall share information and coordinate investigatory and enforcement resources with the Departments of Financial Regulation, of Labor, and of Taxes pursuant to the provisions of section 3 of this title. (b) (1)  The Attorney General shall share information and coordinate investigatory and enforcement resources with the Departments of Financial Regulation, of Labor, and of Taxes pursuant to the provisions of section 3 of this title.
    2. Upon receiving notice that the Attorney General has determined that an employer has committed a violation of this subchapter by misclassifying an employee as an independent contractor, the Commissioners of Financial Regulation and of Taxes shall review whether the employer is in compliance with the insurance or tax laws that are under their jurisdiction.

      Added 2019, No. 85 (Adj. Sess.), § 6, eff. Feb. 20, 2020; amended 2021, No. 20 , § 217; repealed on July 1, 2026 by 2019, No. 85 (Adj. Sess.), § 11(b).

History

Amendments--2021. Subdiv. (b)(2): Substituted "employer" for "employing unit" preceding "has committed a violation”.

Prior law. Former § 387, relating to the composition of the wage board, was derived from 1957, No. 303 , § 7; and amended by 1963, No. 193 , § 9; and 1965, No. 35 , § 2 and was repealed by 1995, No. 188 (Adj. Sess.), § 4.

§ 390. Repealed. 2001, No. 47, § 8.

History

Former § 390. Former § 390, relating to report was derived from 1957, No. 303 , § 10.

§ 390a. Repealed. 2001, No. 47, § 3.

History

Former § 390a. Former § 390a, relating to investigation of student employment, was derived from 1967, No. 177 , § 3, eff. April 17, 1967.

§ 391. Modification of wage orders.

The Commissioner with the approval of the Governor may from time to time propose modifications of or additions to any regulations included in any minimum wage order which the Commissioner deems appropriate.

Amended 2001, No. 47 , § 4.

History

Source. 1957, No. 303 , § 11.

Amendments--2001. Section amended generally.

ANNOTATIONS

1. Modifications.

Modification to regulation reflecting 1959 increase of minimum wage to $ 1.00 per hour could not be made by Commissioner without reconvening wage boards, since such modification could not have been included legally in original order within meaning of this section. 1958-60 Op. Atty. Gen. 121.

§ 392. Court proceedings.

If any employer covered by a wage order has failed to comply with the wage order within 14 days after receiving notification of the violation, the Commissioner shall take court action to enforce the order.

Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2001, No. 47 , § 5; 2017, No. 11 , § 51.

History

Source. 1957, No. 303 , § 12.

Amendments--2017. Substituted "14" for "10" following "within".

Amendments--2001. Amended section generally.

Amendments--1973 (Adj. Sess.). Substituted "Superior" for "county" preceding "court" in the second sentence.

§ 393. Employers' records.

Every employer, subject to the provisions of this subchapter or of any regulation or order issued thereunder, shall keep a true and accurate record of the hours worked by each employee and of the wages paid to him or her and shall furnish to the Commissioner upon demand a sworn statement of the same. Such records shall be open to inspection by the Commissioner, his or her deputy, or any authorized agent of the Department at any reasonable time. Every employer subject to the provisions of this subchapter or of any regulation or order issued under the provisions thereof shall keep a copy of them posted in a conspicuous place in the area where employees are employed. The Commissioner shall furnish copies of such orders and regulations to employers without charge.

History

Source. 1957, No. 303 , § 13.

§ 394. Penalties.

  1. Any employer, subject to this subchapter or any regulations or orders issued thereunder, or any of the employer's agents or the officer or agent of any corporation who pays or permits to be paid or agrees to pay to any employee engaged in any industry or occupation less than the applicable rate to which the employee is entitled under this subchapter, shall be fined not more than $100.00 for each day the employee is paid less than the rate required under this subchapter.
  2. Any employer or any of the employer's agents or the officer or agent of any corporation who fails to keep the records required under this subchapter or refuses to permit the Commissioner to enter the place of business or who fails to furnish the records to the Commissioner upon demand shall be fined not more than $100.00.

    Amended 2001, No. 47 , § 6.

History

Source. 1957, No. 303 , § 14.

Amendments--2001. Section amended generally.

ANNOTATIONS

Cited. Lanphear v. Tognelli, 157 Vt. 560, 601 A.2d 1384 (1991).

§ 395. Civil actions.

If any employee is paid by an employer less than the applicable wage rate to which the employee is entitled under this subchapter, the employee shall recover, in a civil action, twice the amount of the minimum wage less any amount actually paid by the employer, together with costs and reasonable attorney's fees, and any agreement between an employer and an employee to work for less than the wage rates is no defense to the action.

Amended 2001, No. 47 , § 7.

History

Source. 1957, No. 303 , § 15.

Amendments--2001. Section amended generally.

ANNOTATIONS

Cited. Lanphear v. Tognelli, 157 Vt. 560, 601 A.2d 1384 (1991); United Paperworkers Local 340 v. Specialty Paperboard, Inc., 999 F.2d 51 (2d Cir. 1993).

§ 396. Appeals from Commissioner's decisions.

  1. Appeals to Superior Court wherein a civil action between the parties would be triable.  Any person aggrieved by any decision of the Commissioner may appeal to the Superior Court.
  2. Procedure.  The court shall direct the record in the matter appealed from to be laid before it, hear the evidence, and make such order approving in whole or in part or setting aside in whole or in part the decision appealed from as justice may require, and may refer any matter or issue arising in the proceedings to the Commissioner for further consideration. However, in no case shall such an appeal operate as a supersedeas or stay unless the Commissioner or the court to which such appeal is taken shall so order.
  3. Certifying record.  An order of court to send up the record may be complied with by filing either the original papers or duly certified copies thereof, or of such portions thereof as the order may specify, together with a certified statement of such other facts as show the grounds of the action appealed from.
  4. Hearing.  The court may take evidence or may appoint a referee to take such evidence as it may direct and to report the same with findings of fact.
  5. Costs.  In any proceedings under this subchapter, the court may make such award of costs as may seem equitable and just.
  6. Appeal, Supreme Court.  Appeal from the decision of the Superior Court may be had to the Supreme Court.

    Amended 1971, No. 185 (Adj. Sess.), § 193, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3; 1997, No. 161 (Adj. Sess.), § 17, eff. Jan. 1, 1998.

History

Source. 1957, No. 303 , § 16.

Revision note. Substituted "Superior Court" for "in court of a county" as the catchline for subsec. (a) pursuant to 1973, No. 193 (Adj. Sess.), § 3. See note set out under § 71 of Title 4.

Amendments--1997 (Adj. Sess.). Subsec. (a): Deleted "within thirty days after the decision has been rendered" at the end of the second sentence.

Subsec. (d): Deleted "his" preceding "findings".

Amendments--1973 (Adj. Sess.). Substituted "Superior" for "county" preceding "court" in the text of subsecs. (a) and (f).

Amendments--1971 (Adj. Sess.). Subsec. (f): Deleted "as provided in chapter 103 of Title 12" following "Supreme Court" at the end of the text.

§ 397. Retaliation prohibited.

  1. An employer shall not discharge or in any other manner retaliate against an employee because:
    1. the employee lodged a complaint of a violation of this subchapter;
    2. the employee has cooperated with the Commissioner in an investigation of a violation of this subchapter; or
    3. the employer believes that the employee may lodge a complaint or cooperate in an investigation of a violation of this subchapter.
  2. Any person aggrieved by a violation of this section may bring an action in the Civil Division of the Superior Court seeking compensatory and punitive damages or equitable relief, including restraint of prohibited acts, restitution of wages or benefits, reinstatement, costs, reasonable attorney's fees, and other appropriate relief.

    Added 2013, No. 15 , § 9.

Subchapter 3A. Notice of Potential Layoffs Act

History

Legislative findings. 2013, No. 125 (Adj. Sess.), § 1 provides: "The General Assembly finds:

"(1) The 21st century workplace is fundamentally different from the 20th century workplace. Along with a changing workplace comes a different workforce. Policies and resources must be updated to reflect the changing workplace and workforce.

"(2) Businesses retain sensitive information for proprietary and competitive reasons.

"(3) When the State requires this information, the sensitivity of this information must be respected and protected.

"(4) The Department, as well as other agencies, are able to access federal and State resources to mitigate adverse employment impacts affecting employers, employees, communities, and the Unemployment Insurance Trust Fund.

"(5) The Department and the Agency of Commerce and Community Development, as well as other agencies, must be able to respond to and assist with economic and workforce training and retention initiatives in a timely fashion.

"(6) Municipalities, school districts, and local for-profit and nonprofit businesses are all affected by plant closings and mass layoffs. In order to mitigate adverse impacts, communities and stakeholders need timely information pertaining to plant closings and mass layoffs. Private and public sectors need to work together to reduce the volatility and disruptions that come with layoffs."

§ 411. Definitions.

As used in this subchapter:

  1. "Affected employees" means employees who may be expected to experience an employment loss as a consequence of a proposed or actual business closing or mass layoff by their employer.
  2. "Business closing" means:
    1. the permanent shutdown of a facility;
    2. the permanent cessation of operations at one or more worksites in the State that results in the layoff of 50 or more employees over a 90-day period; or
    3. the cessation of work or operations not scheduled to resume within 90 days that affects 50 or more employees.
  3. "Commissioner" means the Commissioner of Labor.
  4. "Department" means the Department of Labor.
  5. "Employer" means any person that employs:
    1. 50 or more full-time employees;
    2. 50 or more part-time employees who work at least 1,040 hours per employee per year; or
    3. a combination of 50 or more:
      1. full-time employees; and
      2. part-time employees who work at least 1,040 hours per employee per year.
  6. "Employment loss" means the termination of employment that is the direct result of a business closing or mass layoff. An employee will not be considered to have suffered an employment loss if the employee is offered a transfer to a different site of employment within 35 miles; or if prior to the layoff notice to the employee, the employee voluntarily separates or retires or was separated by the employer for unsatisfactory performance or misconduct.
  7. "Mass layoff" means a permanent employment loss of at least 50 employees at one or more worksites in Vermont during any 90-day period. In determining whether a mass layoff has occurred or will occur, employment losses for two or more groups of employees, each of which is below this threshold but which in the aggregate exceed this threshold and which occur within any 90-day period shall be considered to be a mass layoff unless the employer demonstrates that the employment losses are the result of separate and distinct actions and causes.
  8. "Representative" means an exclusive bargaining agent as legally recognized under State or federal labor laws.

    Added 2013, No. 125 (Adj. Sess.), § 2, eff. Jan. 15, 2015.

History

Effective date of enactment. 2013, No. 125 (Adj. Sess.), § 3(b) provides that this section shall take effect on January 15, 2015.

§ 412. Education and outreach.

The Department and the Agency of Commerce and Community Development shall prepare information and materials for the purpose of informing and educating Vermont employers with regard to programs and resources that are available to assist with economic and workforce retention initiatives in order to avoid business closings and mass layoffs. The Department and the Agency of Commerce and Community Development shall also inform Vermont employers of the employers' obligations that will be required for proper notice under the provisions of this subchapter.

Added 2013, No. 125 (Adj. Sess.), § 2, eff. May 10, 2014.

History

Effective date of enactment. 2013, No. 125 (Adj. Sess.), § 3(a) provides that this section, shall take effect upon passage [May 10, 2014].

§ 413. Notice and wage payment obligations.

  1. An employer who will engage in a closing or mass layoff shall provide notice to the Secretary of Commerce and Community Development and the Commissioner in accordance with this section to enable the State to present information on potential support for the employer and separated employees.
  2. Notwithstanding subsection (a) of this section, an employer who will engage in a closing or mass layoff shall provide notice to the Secretary of Commerce and Community Development and the Commissioner 45 days prior to the effective date of the closing or layoffs that reach the thresholds defined in section 411 of this subchapter, and shall provide 30 days' notice to the local chief elected official or administrative officer of the municipality, affected employees, and bargaining agent, if any.
  3. The employer shall send to the Commissioner and the Secretary the approximate number and job titles of affected employees, the anticipated date of the employment loss, and the affected worksites within the time allotted for notice to the Commissioner and Secretary under subsection 413(b) or 414(b) of this subchapter. Concurrent with the notification to the affected employees, in accordance with subsection 413(b) of this subchapter, the employer shall send to the Commissioner in writing the actual number of layoffs, job titles, date of layoff, and other information as the Commissioner deems necessary for the purposes of unemployment insurance benefit processing and for accessing federal and State resources to mitigate adverse employment impacts affecting employers, employees, and communities.
  4. In the case of a sale of part or all of an employer's business where mass layoffs will occur, the seller and the purchaser are still required to comply with the notice requirements under subsection (b) of this section.
  5. Nothing in this subchapter shall abridge, abrogate, or restrict the right of the State to require an employer that is receiving State economic development funds or incentives from being required to provide additional or earlier notice as a condition for the receipt of such funds or incentives.
  6. An employer is required to pay all unpaid wage and compensation owed to any laid-off worker, as required under this title.
  7. This section shall not apply to a nursing home in situations where Rules 2.8 and 3.14 of the Vermont Licensing and Operating Rules for Nursing Homes apply or where the CMS Requirements for Long-Term Care Facilities apply, pursuant to 42 C.F.R. §§ 483.12 and 483.75.

    Added 2013, No. 125 (Adj. Sess.), § 2, eff. Jan. 15, 2015.

History

Effective date of enactment. 2013, No. 125 (Adj. Sess.), § 3(b) provides that this section shall take effect on January 15, 2015.

§ 414. Exceptions.

  1. In the case of a business closing or mass layoff, an employer is not required to comply with the notice requirement in subsection 413 of this subchapter and may delay notification to the Department if:
    1. the business closing or mass layoff results from a strike or a lockout;
    2. the employer is actively attempting to secure capital or investments in order to avoid closing or mass layoffs; and the capital or investments sought, if obtained, would have enabled the employer to avoid or postpone the business closing or mass layoff, and the employer reasonably and in good faith believed that giving the notice would have precluded the employer from securing the needed capital or investment;
    3. the business closing or mass layoff is caused by business circumstances that were not reasonably foreseeable at the time the 45-day notice would have been required;
    4. the business closing or mass layoff is due to a disaster beyond the control of the employer; or
      1. the business closing or the mass layoff is the result of the conclusion of seasonal employment or the completion of a particular project or undertaking; or (5) (A) the business closing or the mass layoff is the result of the conclusion of seasonal employment or the completion of a particular project or undertaking; or
      2. the affected employees were hired with the understanding that their employment was limited to the duration of the season, facility, project, or undertaking.
  2. An employer that is unable to provide the notice otherwise required by this subchapter as a result of circumstances described in subsection (a) of this section shall provide as much notice as is practicable and at that time shall provide a brief statement to the Commissioner regarding the basis for failure to meet the notification period. In such situations, the mailing of the notice by certified mail or any other method approved by the Commissioner shall be considered acceptable in the fulfillment of the employer's obligation to give notice to each affected employee under this subchapter. At the time of notice to the Commissioner, the employer shall provide the required information under subdivisions 413(c) of this subchapter.

    Added 2013, No. 125 (Adj. Sess.), § 2, eff. Jan. 15, 2015.

History

Effective date of enactment. 2013, No. 125 (Adj. Sess.), § 3(b) provides that this section shall take effect on January 15, 2015.

§ 415. Violations.

  1. An employer who violates subsection 413(b) or 414(b) of this subchapter is liable to each employee who lost his or her employment for:
    1. one day of severance pay for each day after the first day in the 45-day notice period required in subsection 413(b) of this subchapter, up to a maximum of ten days' severance pay; and
    2. the continuation, not to exceed one month after an employment loss, of existing medical or dental coverage under an employment benefit plan, if any, necessary to cover any delay in an employee's eligibility for obtaining alternative coverage resulting directly from the employer's violation of notice requirements.
  2. The amount of an employer's liability under subsection (a) of this section shall be reduced by the following:
    1. any voluntary and unconditional payments made by the employer to the employee that were not required to satisfy any legal obligation;
    2. any payments by the employer to a third party or trustee, such as premiums for health benefits or payments to a defined contribution pension plan, on behalf of and attributable to the employee for the period of the violation; and
    3. any liability paid by the employer under any applicable federal law governing notification of mass layoffs, business closings, or relocations.
  3. If an employer proves to the satisfaction of the Commissioner that the act or omission that violated this subchapter was in good faith, the Commissioner may reduce the amount of liability provided for in this section. In determining the amount of such a reduction, the Commissioner shall consider any efforts by the employer to mitigate the violation.
  4. If, after an administrative hearing, the Commissioner determines that an employer has violated any of the requirements of this subchapter, the Commissioner shall issue an order including any penalties assessed by the Commissioner under this section and section 417 of this subchapter. The employer may appeal a decision of the Commissioner to the Superior Court within 30 days of the date of the Commissioner's order.

    Added 2013, No. 125 (Adj. Sess.), § 2, eff. Jan. 15, 2015.

History

Effective date of enactment. 2013, No. 125 (Adj. Sess.), § 3(b) provides that this section shall take effect on January 15, 2015.

§ 416. Powers of the Commissioner.

  1. The Commissioner may adopt rules as necessary, pursuant to 3 V.S.A. chapter 25, to carry out this subchapter. The rules shall include provisions that allow the parties access to administrative hearings for any actions of the Department under this subchapter.
  2. In any investigation or proceeding under this subchapter, the Commissioner has, in addition to all other powers granted by law, the authority to subpoena and examine information of an employer necessary to determine whether a violation of this subchapter has occurred, including to determine the validity of any defense.
  3. Information obtained through administration of this subchapter by the Commissioner and the Secretary of Commerce and Community Development shall be confidential, except that the number of layoffs, the types of jobs affected, and work locations affected shall cease to be confidential after local government and the affected employees have been notified. The Department may provide the information collected pursuant to subsection 413(c) of this subchapter to the U.S. Department of Labor and any other governmental entities for the purposes of securing benefits for the affected employees.
  4. Neither the Commissioner nor any court shall have the authority to enjoin a business closing, relocation, or mass layoff under this subchapter.

    Added 2013, No. 125 (Adj. Sess.), § 2, eff. Jan. 15, 2015.

History

Effective date of subsection (a). 2013, No. 125 (Adj. Sess.), § 3(a) provides that subsection (a) of this section shall take effect upon passage [May 10, 2014].

Effective date of subsections (b)-(d). 2013, No. 125 (Adj. Sess.), § 3(b) provides that subsections (b)-(d) of this section shall take effect on January 15, 2015.

§ 417. Administrative penalty.

An employer who fails to give notice as required by subsection 413(b) or 414(b) of this subchapter shall be subject to an administrative penalty of $500.00 for each day that the employer was deficient in the notice to the Department. The Commissioner may waive the administrative penalty if the employer:

  1. demonstrates good cause under subsection 414(b) of this subchapter;
  2. pays to all affected employees the amounts for which the employer is liable under section 415 of this title within 30 days from the date the employer enacts the business closing or mass layoff; and
  3. pays to all affected employees any unpaid wage and compensation owed to any laid-off worker, as required under this title.

    Added 2013, No. 125 (Adj. Sess.), § 2, eff. Jan. 15, 2015.

History

Effective date of enactment. 2013, No. 125 (Adj. Sess.), § 3(b) provides that this section shall take effect on January 15, 2015.

§ 418. Other rights.

The rights and remedies provided to employees by this subchapter do not infringe upon or alter any other contractual or statutory rights and remedies of the employees. Nothing in this subchapter is intended to alter or diminish or replace any federal or State regulatory mandates for a shutdown or closure of a regulated business or entity.

Added 2013, No. 125 (Adj. Sess.), § 2, eff. Jan. 15, 2015; amended 2017, No. 74 , § 34.

History

Amendments--2017. Substituted "subchapter" for "section" preceding "is intended" in the second sentence.

Effective date of enactment. 2013, No. 125 (Adj. Sess.), § 3(b) provides that this section shall take effect on January 15, 2015.

Subchapter 4. Employment of Children and Aliens

History

Revision note. Deleted "Women and" from the subchapter heading to reflect changes made by 1969, No. 218 (Adj Sess.).

Added "and Aliens" to the subchapter heading to reflect changes made by 1977, No. 99 .

ANNOTATIONS

Analysis

1. Construction with other laws.

This subchapter and chapter 9 of this title, the Workmen's Compensation Act, not being in conflict, are to be construed together. Wlock v. Fort Dummer Mills, 98 Vt. 449, 129 A. 311 (1925).

2. Purpose.

Provisions of this subchapter relating to employment of children are police regulations for promotion of health, safety, and education of children, in interest of good order and general welfare of people of state. Wlock v. Fort Dummer Mills, 98 Vt. 449, 129 A. 311 (1925).

3. Children injured while illegally employed.

This subchapter, being for protection of health and safety of children of state, and in part for their benefit, minor injured while employed in violation of this subchapter has remedy by civil action against his employer upon this subchapter. Wlock v. Fort Dummer Mills, 98 Vt. 449, 129 A. 311 (1925).

Where minor brings action against employer for injuries received while employed in violation of child labor law, contributory negligence of minor is not available as defense. Wlock v. Fort Dummer Mills, 98 Vt. 449, 129 A. 311 (1925).

Doctrine of assumption of risk does not apply as defense to action by minor against employer for injuries received while employed in violation of this subchapter, the negligence of employer consisting in disregard of statutory duty imposed upon employer for protection of minor employees. Wlock v. Fort Dummer Mills, 98 Vt. 449, 129 A. 311 (1925).

Cited. Wisell v. Jorgensen, 136 Vt. 604, 398 A.2d 283 (1979).

§ 430. Policy; definitions; rules.

  1. It is the policy of Vermont that children shall be protected from employment in harmful and dangerous occupations. Toward this end, Vermont law should reflect federal protections regarding the employment of children, but should continue to provide additional protection for children in Vermont where particular circumstances warrant greater protection for children.
  2. For the purposes of this subchapter:
    1. "Child" or "children" means an individual under the age of 18 years.
    2. "Commissioner" means the Commissioner of Labor or designee.
    3. "Employee" means any individual suffered or permitted to work by an employer.
    4. "Illegal child employment" means the employment of any child under the age of 18 in any work or occupation specifically prohibited by State or federal law. "Illegal child employment" does not include work performed by students as part of an educational program, provided this subchapter or federal law specifically permits this work.
  3. The Commissioner shall adopt rules to carry out the purpose and intent of this subchapter, provided the rules are consistent with federal child labor laws and rules. However, the Commissioner shall not be required to adopt or modify rules in order to conform with a change in federal child labor laws or regulations which weakens or eliminates an existing child labor protection policy.

    Added 2001, No. 68 , § 1; amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Amendments--2005 (Adj. Sess.) Subdivision (b)(2): Substituted "Commissioner of Labor" for "commissioner of labor and industry".

§ 431. Age limit; certificate as to eligibility of child under 16.

Except as provided in this subchapter, a child under 16 years of age shall not be employed in any gainful occupation unless the child deposits with the employer a certificate from the Commissioner that states that the child is eligible for employment in accordance with the provisions of this subchapter. However, this requirement shall not apply to any child employed during vacations or before or after sessions of school when the employment is not otherwise prohibited by this subchapter.

Amended 1999, No. 69 (Adj. Sess.), § 1; 2001, No. 68 , § 2.

History

Source. V.S. 1947, § 8165. 1937, No. 176 , § 1. P.L. § 6579. G.L. § 5832. 1917, No. 177 , § 1. 1912, No. 75 , § 10. 1910, No. 69 , § 5. 1908, No. 44 , § 1. P.S. § 1044. 1906, No. 52 , § 1. 1904, No. 155 , § 2. V.S. § 712. 1894, No. 26 , § 2. 1892, No. 22 , § 4. 1888, No. 9 , § 154. R.L. § 673. 1867, No. 35 , § 2.

Amendments--2001. Added "under 16" at the end of section heading, substituted "the" for "such" following "occupation unless" and "that states" for "of Labor and Industry to the effect" following "the Commissioner" in the first sentence, substituted "the" for "such" preceding "employment" and deleted "subsequent provisions of" preceding "this subchapter" in the second sentence.

Amendments--1999 (Adj. Sess.). Substituted "16 years" for "sixteen years" and "that the child is eligible for employment" for "he is eligible to employment" in the first sentence and "any child employed" for "any such child when employed" in the second sentence.

Cross References

Cross references. Employment of children under 14 years, see § 436 of this title.

Special restrictions on employment of children under 16 years, see § 437 of this title.

ANNOTATIONS

1. Certificate.

Provision of this section that a child shall not be employed unless he deposits with the employer an employment certificate is mandatory, and an employer who hires a minor without receiving such a certificate is not excused from liability even if the child and his parents falsely represent that the child is over the age of sixteen. Wlock v. Fort Dummer Mills, 98 Vt. 449, 129 A. 311 (1925).

§ 432. Restrictions.

  1. The Commissioner shall not issue a certificate for a child under 16 pursuant to section 431 of this title until the Commissioner has received, examined, approved, and filed the following papers:
    1. The school record of the child properly filled out and signed by the person in charge of the school which the child last attended, giving the child's age, address, standing in studies, rating in conduct, and attendance in days during the school year of the last full year of attendance.
    2. Evidence of the age of the child as follows:
      1. The birth certificate of the child, or a copy certified by the town clerk in a town where the certificate is a part of the public records.
      2. If the certificate or certified copy cannot be procured, a duly attested transcript of the certificate of birth or baptism or other religious record, shall be conclusive evidence of the age of the child.
      3. In case no documentary proof of age is available, the Commissioner may accept an affidavit from the parent, guardian, or custodian of the child to establish the age of the child.
    3. A certificate from a physician resident in and licensed to practice in this State showing that after a thorough examination the child is found to be physically fit to be employed in the proposed occupation. When a certificate is requested for the employment of a child under 16 as an actor or performer in motion pictures, theatrical productions, radio, or television, this provision may be waived at the discretion of the Commissioner.
    4. Before a certificate approving the employment of a child as an actor or performer in motion pictures, theatrical productions, radio, or television is issued by the Commissioner, the Secretary of Education must approve the substance and conditions of the educational program being provided to the child during this employment which in no case shall be more than 90 days during the school year.
  2. The Commissioner shall refuse a certificate to a child under 16 years of age unless the child has completed the elementary school course, or received an equivalent education, or has been excused from further school attendance under the provisions of 16 V.S.A. § 1123 .

    Amended 1987, No. 4 , § 1, eff. March 10, 1987; 2001, No. 68 , § 3; 2013, No. 92 (Adj. Sess.), § 262, eff. Feb. 14, 2014.

History

Source. V.S. 1947, § 8166. 1937, No. 176 , § 2. P.L. § 6580. 1933, No. 157 , § 6254. 1931, No. 115 , § 1. G.L. § 5833. 1917, No. 177 , § 1. 1912, No. 75 , § 10. 1910, No. 69 , § 5. 1908, No. 44 , § 1. P.S. § 1044. 1906, No. 52 , § 1. 1904, No. 155 , § 2. V.S. § 712. 1894, No. 26 , § 2. 1892, No. 22 , § 4. 1888, No. 9 , § 154. R.L. § 673. 1867, No. 35 , § 2.

Amendments--2013 (Adj. Sess.). Subdiv. (a)(4): Substituted "Secretary of Education" for "commissioner of education".

Subsec. (b): Substituted "V.S.A. § 1123" for "section 1123 of Title".

Amendments--2001. Section amended generally.

Amendments--1987. Inserted "or she" following "he" in the introductory paragraph and "or her" following "his" in two places in subdiv. (1), added the second sentence in subdiv. (3), and added subdiv. (4).

§ 433. Repealed. 2001, No. 68, § 16(1).

History

Former § 433. Former § 433, relating to necessity of elementary school course, was derived from V.S. 1947, § 8167; 1937. No. 176, § 2; P.L. § 6580; 1933, No. 157 , § 6254; 1931, No. 115 , § 1; G.L. § 5833; 1917, No. 177 , § 1; 1912, No. 75 , § 10; 1910, No. 69 , § 5; 1908, No. 44 , § 1; P.S. § 1044; 1906, No. 52 , § 1; 1904, No. 155 , § 2; V.S. § 712; 1894, No. 26 , § 2; 1892, No. 22 , § 4; 1888, No. 9 , § 154; R.L. § 673; 1867, No. 35 , § 2.

§ 434. Employment of children under 16.

A child under 16 years of age shall not be employed more than eight hours in any day, or more than six days in any week, or earlier than seven o'clock in the morning, or after seven o'clock at night, except from June 1 through Labor Day when a child may be permitted to work until nine o'clock at night. A child under 16 years of age shall not be employed more than three hours on any day that school is in session, and not more than a total of 18 hours during any week that school is in session. However, in the case of a child employed as an actor or performer in motion pictures, theatrical productions, radio, or television, or employed as a baseball bat girl or bat boy, the child may be employed until midnight or after midnight if a parent or guardian and the Commissioner of Labor have consented in writing. The Department shall adopt rules regarding the permissible duties of a baseball bat girl or bat boy. The provisions of this section shall not apply to employment as a newspaper carrier or work connected with agriculture or domestic service.

Added 1987, No. 4 , § 2, eff. March 10, 1987; amended 1987, No. 144 (Adj. Sess.), eff. April 13, 1988; 1999, No. 69 (Adj. Sess.), § 2; 2001, No. 68 , § 4; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Source. V.S. 1947, § 8168. 1937, No. 176 , § 3. P.L. § 6581. 1931, No. 115 , § 1. G.L. § 5833. 1917, No. 177 , § 1. 1912, No. 75 , § 10. 1910, No. 69 , § 5. 1908, No. 44 , § 1. P.S. § 1044. 1906, No. 52 , § 1. 1904, No. 155 , § 2. V.S. § 712. 1894, No. 26 , § 2. 1892, No. 22 , § 4. 1888, No. 9 , § 154. R.L. § 673. 1867, No. 35 , § 2.

Amendments--2005 (Adj. Sess.) Substituted "Commissioner of Labor" for "commissioner of labor and industry" in the third sentence.

Amendments--2001. Section amended generally.

Amendments--1999 (Adj. Sess.). Substituted "16 years" for "sixteen years" in the first sentence, inserted "or employed as a baseball bat girl or bat boy" following "television" in the second sentence and added the third sentence.

Amendments--1987 (Adj. Sess.). Added "or after midnight if a parent or guardian and the commissioner of labor and industry have consented in writing" following "employed until midnight" in the second sentence.

Amendments--1987. Inserted the second sentence and deleted "however" from the beginning of the third sentence.

§ 435. Examination and report.

When so ordered by the Secretary of Education, the superintendent of schools for the school district where the child under 16 years of age resides shall examine the child for the purpose of determining the child's eligibility for employment in accordance with the provisions of section 432 of this title and shall, upon the completion of the examination, make a written report to the Secretary of Education who shall transmit a copy of the report to the Commissioner.

Amended 2001, No. 68 , § 5; 2013, No. 92 (Adj. Sess.), § 263, eff. Feb. 14, 2014; 2017, No. 74 , § 35.

History

Source. V.S. 1947, § 8169. 1937, No. 176 , § 4. P.L. § 6582. 1933, No. 157 , § 6256. 1931, No. 115 , § 1. G.L. § 5833. 1917, No. 177 , § 1. 1912, No. 75 , § 10. 1910, No. 69 , § 5. 1908, No. 44 , § 1. P.S. § 1044. 1906, No. 52 , § 1. 1904, No. 155 , § 2. V.S. § 712. 1894, No. 26 , § 2. 1892, No. 22 , § 4. 1888, No. 9 , § 154. R.L. § 673. 1867, No. 35 , § 2.

Reference in text. Section 433 of this title was repealed by 2001, No. 68 , § 16(1).

Revision note. Reference to "commissioner of industrial relations" changed to "commissioner of labor and industry" pursuant to 1967, No. 71 , § 1(c). See note set out under § 1 of this title.

Amendments--2017. Substituted "section 432" for "sections 432 and 433" preceding "of this title".

Amendments--2013 (Adj. Sess.). Substituted "Secretary of Education" for "commissioner of education" twice and inserted "years of age" following "child under 16".

Amendments--2001. Amended section generally.

§ 436. Employment of children under 14 years.

A child under 14 years of age shall not be employed or permitted to work in any gainful occupation unless the occupation has been approved by the Commissioner, by rule, to be appropriate for a child under the age of 14, and the employment occurs during vacation and before and after school. The provisions of this section shall not apply to:

  1. Employment by a parent or a person standing in place of a parent employing his or her own child or a child in his or her custody in an occupation other than manufacturing, mining, or an occupation found by the U.S. Secretary of Labor to be particularly hazardous or detrimental to their health or well-being.
  2. A newspaper carrier.
  3. An actor or performer in motion pictures, theatrical productions, radio, and television.

    Amended 1987, No. 4 , § 3, eff. March 10, 1987; 2001, No. 68 , § 6; 2013, No. 96 (Adj. Sess.), § 127.

History

Source. V.S. 1947, § 8170. 1937, No. 176 , § 5. P.L. § 6583. G.L. § 5834. 1917, No. 177 , § 2. 1912, No. 75 , § 12. 1910, No. 70 , § 1. P.S. § 1046. 1906, No. 52 , § 3. 1904, No. 155 , § 1.

Amendments--2013 (Adj. Sess.). Replaced "," with "or " preceding "permitted" and deleted "or suffered" following "permitted".

Amendments--2001. Section amended generally.

Amendments--1987. Added the third sentence.

Cross References

Cross references. Certificate as to eligibility of child, see § 431 of this title.

§ 437. Employment of children; special restrictions; hours for children under 16 years.

  1. Except as provided in section 438 of this title, a child shall not be employed or permitted to work at or on any occupations, employment, operations, or machines determined to be hazardous, by rule, by the U.S. Secretary of Labor or the Commissioner.
  2. A child under 16 years of age shall not be employed more than eight hours in any one day or more than 40 hours in any one week.

    Amended 2001, No. 68 , § 7; 2013, No. 96 (Adj. Sess.), § 128.

History

Source. V.S. 1947, § 8171. 1937, No. 176 , § 6. P.L. § 6584. 1933, No. 157 , § 6258. 1931, No. 116 . G.L. § 5835. 1917, No. 177 , § 3. 1910, No. 70 , § 2.

Amendments--2013 (Adj. Sess.). Subsection (a): Replaced "," with "or " preceding "permitted" and deleted "or suffered" following "permitted".

Amendments--2001. Section amended generally.

ANNOTATIONS

1. Operation of machine.

Allegation that employer instructed fourteen year old employee "to operate and work in, on and about" a laundry dryer and instructed him to remove clothes from the dryer alleged that the child was instructed to operate a laundering machine in violation of subdivision (3) of this section. Brace v. Rashaw, 114 Vt. 366, 45 A.2d 207 (1946).

Cited. Bruley v. Fonda Group, Inc., 157 Vt. 1, 595 A.2d 269 (1991).

§ 438. Exceptions.

A child over 14 years of age, who is enrolled in a career technical education program or course duly approved by the State Board of Education, may be legally employed in any of the occupations or operations named in section 437 of this title or other occupations or operations that may be in the estimation of the State Board of Education a necessary or essential part of the student's career technical education, provided that the plant, work places, machinery, and other appliances and equipment used for instruction have been inspected for safe conditions and approved by the Commissioner.

Amended 1991, No. 204 (Adj. Sess.), § 9; 2001, No. 68 , § 8; 2013, No. 92 (Adj. Sess.), § 302, eff. Feb. 14, 2014.

History

Source. V.S. 1947, § 8172. P.L. § 6585. 1933, No. 157 , § 6259. 1931, No. 116 . G.L. § 5835. 1917, No. 177 , § 3. 1910, No. 70 , § 2.

Revision note. Reference to "commissioner of industrial relations" changed to "commissioner of labor and industry" pursuant to 1967, No. 71 , § 1(c). See note set out under § 1 of this title.

2014. Substituted "career technical education" for "technical education" twice in accordance with 2013, No. 92 (Adj. Sess.), § 302.

Amendments--2001. Substituted "child over 14" for "pupil, however, over fourteen" preceding "years of age", "the" for "such" preceding "state board", "the student's" for "his or her" preceding "technical education", deleted "such" preceding "instruction", and deleted "of labor and industry" at the end of the section.

Amendments--1991 (Adj. Sess.). Substituted "technical education program" for "vocational school" preceding "or course", deleted "in accordance with sections 149 and 1021 of Title 16" preceding "may be legally", and substituted "or her technical education" for "vocational training" preceding "provided".

§ 439. Repealed. 1969, No. 218 (Adj. Sess.), § 4, eff. March 27, 1970.

History

Former § 439. Former § 439, relating to restrictions on employment of females under 18, was derived from V.S. 1947, § 8173; P.L. § 6586; G.L. 5836; 1910, No. 70 , § 3.

§ 440. Repealed. 2001, No. 68, § 16(2).

History

Former § 440. Former § 440, relating to manufacturing and mechanical establishments; hours of labor for children, was derived from V.S. 1947, § 8174; 1947, No. 202 , § 8329; 1943, No. 130 , § 1; 1937, No. 177 , § 1; P.L. § 6587; G.L. § 5837; 1917, No. 177 , § 4; 1912, No. 85 , § 1 and amended by 1969, No. 218 (Adj. Sess.), § 1.

§ 441. Repealed. 2001, No. 68, § 16(5).

History

Former § 441. Former § 441, relating to emergency or peak demand cases, was derived from 1955, No. 148 ; V.S. 1947, § 8175; 1947, No. 202 , § 8330; 1943, No. 130 , § 1; 1937, No. 177 , § 1; P.L. § 6587; G.L. § 5837; 1917, No. 177 , § 4; 1912, No. 85 , § 1 and amended 1969, No. 218 (Adj. Sess.), § 2.

§ 442. Posting notices of hours of labor.

An employer shall post in a conspicuous place in the place in which a child is employed a printed notice describing permitted and prohibited operations, occupations, and machines at which a child may be employed, stating the number of hours' work permitted on each day of the week, the hours of commencing and stopping work, and the hours when the time allowed for meals begins and ends. The printed forms of this notice shall be provided by the Commissioner.

Amended 2001, No. 68 , § 10.

History

Source. V.S. 1947, § 8176. P.L. § 6588. G.L. § 5838. 1917, No. 117 , § 5. 1912, No. 85 , § 2.

Amendments--2001. Section amended generally.

§ 443. Repealed. 2001, No. 68, § 16(3).

History

Former § 443. Former § 443, relating to penalty for overemployment, was derived from V.S. 1947, § 8177; P.L. § 6589; G.L. § 5838; 1917, No. 177 , § 5; 1912, No. 85 , § 2 and amended 1969, No. 218 (Adj. Sess.), § 3.

§ 444. Repealed. 1969, No. 218 (Adj. Sess.), § 4, eff. March 27, 1970.

History

Former § 444. Former § 444, relating to employment of pregnant women, was derived from V.S. 1947, § 8178; P.L. § 6590; G.L. § 5839; 1917, No. 177 , § 6; 1912, No. 85 , § 3.

§ 444a. Employment of aliens.

  1. For the purposes of this section:
    1. "Alien" means any person not a citizen of the United States.
    2. "Employer" means any person, including any partnership, firm, corporation, or association, or any agent thereof, who engages or utilizes the personal services of one or more individuals for a salary or wage.
    3. "Illegal alien" means any person not a citizen of the United States who has entered the United States in violation of the Federal Immigration and Naturalization Act or regulations issued thereunder, who has legally entered but without the right to be employed in the country, or who has legally entered subject to a time limit but has remained illegally after expiration of such time limit.
  2. No employer or agent for an employer shall knowingly recruit, solicit, or refer for employment, or employ, an illegal alien.
  3. No employer shall knowingly employ any alien unless the employer determines that the alien possesses the required certificate under the Federal Immigration and Naturalization Act or regulations issued thereunder, or has authorization from the immigration services.
  4. A person convicted of violating this section shall be fined not less than $100.00 or more than $300.00 for conviction of a first offense.  For any subsequent offense, a person convicted of violating this section shall be fined not less than $300.00, nor more than $750.00.

    Added 1977, No. 99 .

History

Reference in text. The Federal Immigration and Naturalization Act, referred to in subdiv. (a)(3) and subsec. (c), is codified as 8 U.S.C. § 1101 et seq.

Cross References

Cross references. Employment of aliens by the State, see 3 V.S.A. § 262.

§ 445. Repealed. 1969, No. 218 (Adj. Sess.), § 4, eff. March 27, 1970.

History

Former § 445. Former § 445, relating to seats in certain establishments employing women and girls, was derived from V.S. 1947, § 8513; P.L. § 8648; G.L. 7044; 1915, No. 209 .

§ 446. Duties of Commissioner as to employment of children.

The Commissioner may inquire of the owner or superintendent of any place or establishment as to the employment of children, may request to see the certificate filed with the owner or superintendent, and shall ensure that the provisions of this subchapter have been complied with.

Amended 2001, No. 68 , § 11.

History

Source. V.S. 1947, § 8179. 1945, No. 151 , § 2. 1937, No. 176 , § 7. P.L. § 6592. G.L. § 5841. 1917, No. 177 , § 8. 1912, No. 75 , § 11. 1910, No. 69 , § 6. 1910, No. 85 , § 4. 1908, No. 44 , § 2. P.S. § 1045. 1906, No. 52 , § 2. V.S. § 715. 1892, No. 22 , § 5. 1888, No. 9 , § 155.

Revision note. Reference to "commissioner of industrial relations" changed to "commissioner of labor and industry" pursuant to 1967, No. 71 , § 1(c). See note set out under § 1 of this title.

Amendments--2001. Amended section generally.

§ 447. Repealed. 2001, No. 68, § 16(4).

History

Former § 447. Former § 447, relating to investigation three times annually, was derived from V.S. 1947, § 8180; 1945, No. 151 , § 2; P.L. § 6593; G.L. § 5841; 1917, No. 177 , § 8; 1912, No. 75 , § 11; 1910, No. 69 , § 6; 1910, No. 85 , § 4; 1908, No. 44 , § 2; P.S. § 1045; 1906, No. 52 , § 2; V.S. § 715; 1892, No. 22 , § 5; 1888, No. 9 , § 155.

§ 448. Duty of person having control of child.

A person having control of a child shall not allow the child to be employed contrary to a provision of this subchapter.

Amended 2001, No. 68 , § 12.

History

Source. V.S. 1947, § 8181. P.L. § 6594. G.L. § 5842. P.S. § 1047. 1904, No. 155 , § 3.

Amendments--2001. Substituted "the child" for "him".

Cross References

Cross references. Complaint for violation of section, see § 451 of this title.

§ 449. General penalty.

A person who violates a provision of this subchapter for which another penalty is not provided shall be fined not more than $5,000.00 for each offense and, upon a subsequent conviction, may be fined or imprisoned for not more than six months, or both.

Amended 1981, No. 223 (Adj. Sess.), § 23; 2001, No. 68 , § 13.

History

Source. V.S. 1947, § 8182. P.L. § 6595. G.L. § 5843. 1910, No. 70 , § 8. P.S. § 1048. 1904, No. 155 , § 3. V.S. § 714. 1892, No. 22 , § 7. 1888, No. 9 , § 157. R.L. § 673. 1867, No. 35 , § 3.

Amendments--2001. Substituted "another" for "other" preceding "penalty" and "$5,000.00" for "$200.00 nor less than $5.00".

Amendments--1981 (Adj. Sess.). Added "or both" following "six months" at the end of the section.

§ 450. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former § 450. Former § 450, relating to jurisdiction of offenses arising under this subchapter, was derived from V.S. 1947, § 8183; P.L. § 6596; 1933, No. 157 , § 6270; G.L. § 5844; 1917, No. 177 , § 9; 1912, No. 85 , § 5; P.S. § 1049; 1904, No. 155 , § 4; V.S. § 714.

§ 451. Complaints.

Truant officers and all informing officers are authorized to make complaints for violations or offenses arising under this subchapter. A complaint for a violation of section 448 of this title shall be sufficient if it states that the person having control of a child has allowed such child to be employed contrary to law.

History

Source. V.S. 1947, § 8184. P.L. § 6597. 1933, No. 157 , § 6271. G.L. §§ 5844, 5845. 1917, No. 177 , § 9. 1912, No. 75 , § 14. 1912, No. 85 , § 5. P.S. §§ 1049, 1050. 1904, No. 155 , § 4. V.S. §§ 714, 720. 1892, No. 22 , § 12. 1888, No. 9 , § 161. R.L. § 672. 1870, No. 113 , §§ 3, 4.

ANNOTATIONS

1. Sufficiency.

Complaint drawn in accordance with this section sufficiently appraises respondent of the "cause and nature of the accusation." State v. McCaffrey, 69 Vt. 85, 37 A. 234 (1896).

§ 452. Suspension of subchapter.

The Commissioner, with the approval of the Governor, may suspend part or all of the provisions of this subchapter for a period not to exceed two months in any one year in the case of a manufacturing establishment or business, the materials and products of which are perishable and require immediate labor to prevent decay or damage.

Amended 2001, No. 68 , § 14.

History

Source. V.S. 1947, § 8185. P.L. § 6598. 1919, No. 160 .

Amendments--2001. Deleted "of Labor and Industry" following "Commissioner", "thereon" following "immediate labor", "thereof" preceding "or damage" and "thereto" thereafter.

ANNOTATIONS

Analysis

1. Perishable.

The term "perishable," as used in this section, means property which for any reason will deteriorate in value as well as property which is in its nature perishable, therefore, waiver for two months may be granted maker of Christmas wrapping tissues of seasonal design of no value after Christmas season. 1938-40 Op. Atty. Gen. 262.

2. Period of suspension.

The two-month suspension period authorized in this section is not limited to two consecutive months or eight consecutive weeks; rather, it is the total amount of time in which the provisions of this subchapter may be suspended in any one year. 1938-40 Op. Atty. Gen. 265.

§ 453. Sale of goods made in violation of subchapter.

No person, partnership, corporation, or association shall knowingly sell, offer, or expose for sale, take orders for the future delivery of, or possess with intent to sell any article, product, or compound in the production, manufacture, or distribution of which children have been employed in violation of the provisions of this subchapter, or in a manner or under conditions that would be in violation of these provisions if the employment had occurred in this State. Any complaint alleging a violation of this section shall be filed with the Commissioner, who shall investigate, and if the Commissioner determines there is sufficient evidence to substantiate the allegations, shall transmit the complaint to the Attorney General or to the State's Attorney of the county in which the violation is alleged to have occurred. A person who violates a provision of this section shall be fined not more than $10,000.00.

Amended 2001, No. 68 , § 15.

History

Source. V.S. 1947, § 8186. 1937, No. 176 , § 8.

Amendments--2001. Section amended generally.

Subchapter 4A. Parental and Family Leave

History

Amendments--1991 (Adj. Sess.). 1991, No. 260 (Adj. Sess.), § 1, substituted "Parental and Family" for "Maternity" preceding "Leave" in the subchapter heading.

Law review commentaries

Law review. For comment, "Maternity Leave for Vermonters: The Good News and the Bad News," see 14 Vt. L. Rev. 179 (1989).

§ 470. Purpose.

  1. Strong families are the foundation for a productive and competitive state. There are a growing number of single-parent families where the sole parent works and two-parent families where both parents work. Most people who work while raising families do so out of economic necessity.
  2. Leave from employment for the birth or adoption of a child or to care for a seriously ill family member addresses one of the important needs of changing family structures. The support of families is a principle recognized and valued by the State of Vermont. When employees have security about their employment and the well-being of their children, parents, and other family members, businesses benefit economically from increased worker productivity and stability.
  3. The provisions of this subchapter are enacted in recognition of the fact that both employers and employees benefit from the establishment of parental and family leave as a condition of employment.

    Added 1991, No. 260 (Adj. Sess.), § 2.

History

Revision note. Designated existing paragraphs of section as subsecs. (a)-(c) for purposes of conformity with V.S.A. style.

ANNOTATIONS

Cited. Woolaver v. State, 175 Vt. 397, 833 A.2d 849 (2002).

§ 471. Definitions.

As used in this subchapter:

  1. "Employer" means an individual, organization, or governmental body, partnership, association, corporation, legal representative, trustee, receiver, trustee in bankruptcy, and any common carrier by rail, motor, water, air, or express company doing business in or operating within this State which for the purposes of parental leave employs 10 or more individuals who are employed for an average of at least 30 hours per week during a year and for the purposes of family leave employs 15 or more individuals for an average of at least 30 hours per week during a year.
  2. "Employee" means a person who, in consideration of direct or indirect gain or profit, has been continuously employed by the same employer for a period of one year for an average of at least 30 hours per week.
  3. "Family leave" means a leave of absence from employment by an employee who works for an employer which employs 15 or more individuals who are employed for an average of at least 30 hours per week during the year for one of the following reasons:
    1. the serious illness of the employee; or
    2. the serious illness of the employee's child, stepchild or ward who lives with the employee, foster child, parent, spouse, or parent of the employee's spouse.
  4. "Parental leave" means a leave of absence from employment by an employee who works for an employer which employs 10 or more individuals who are employed for an average of at least 30 hours per week during the year for one of the following reasons:
    1. the birth of the employee's child; or
    2. the initial placement of a child 16 years of age or younger with the employee for the purpose of adoption.
  5. "Serious illness" means an accident, disease, or physical or mental condition that:
    1. poses imminent danger of death;
    2. requires inpatient care in a hospital; or
    3. requires continuing in-home care under the direction of a physician.

      Added 1989, No. 83 , § 1; amended 1989, No. 150 (Adj. Sess.), § 2; 1991, No. 260 (Adj. Sess.), § 3.

History

Amendments--1991 (Adj. Sess.). Inserted "for the purposes of parental leave" following "state which" in subdiv. (1), added "and for the purposes of family leave, employs 15 or more individuals for an average of at least 30 hours per week during a year" at the end of that subdivision, and added subdivs. (3)-(5).

Amendments--1989 (Adj. Sess.). Subdiv. (1): Inserted "organization or governmental body" preceding "partnership".

ANNOTATIONS

1. Employee.

In construing the definition of employee in Vermont's Parental and Family Leave Act (PFLA), although the statute is silent on the question of whether time spent on accrued sick leave or annual leave counts in calculating the 30 hours of work per week average, the only sensible construction is that it does; therefore, as long as plaintiff was using accrued leave balances that she had earned, the clock was still running toward the 52 weeks of continuous employment required for PFLA eligibility, just as she was continuing to accrue additional leave balances. Woolaver v. State, 175 Vt. 397, 833 A.2d 849 (2002).

§ 472. Leave.

  1. During any 12-month period, an employee shall be entitled to take unpaid leave for a period not to exceed 12 weeks:
    1. for parental leave, during the employee's pregnancy and following the birth of an employee's child or within a year following the initial placement of a child 16 years of age or younger with the employee for the purpose of adoption.
    2. for family leave, for the serious illness of the employee or the employee's child, stepchild or ward of the employee who lives with the employee, foster child, parent, spouse, or parent of the employee's spouse.
  2. During the leave, at the employee's option, the employee may use accrued sick leave or vacation leave or any other accrued paid leave, not to exceed six weeks. Utilization of accrued paid leave shall not extend the leave provided herein.
  3. The employer shall continue employment benefits for the duration of the leave at the level and under the conditions coverage would be provided if the employee continued in employment continuously for the duration of the leave. The employer may require that the employee contribute to the cost of the benefits during the leave at the existing rate of employee contribution.
  4. The employer shall post and maintain in a conspicuous place in and about each of his or her places of business printed notices of the provisions of this subchapter on forms provided by the Commissioner of Labor.
  5. An employee shall give reasonable written notice of intent to take leave under this subchapter. Notice shall include the date the leave is expected to commence and the estimated duration of the leave. In the case of the adoption or birth of a child, an employer shall not require that notice be given more than six weeks prior to the anticipated commencement of the leave. In the case of serious illness of the employee or a member of the employee's family, an employer may require certification from a physician to verify the condition and the amount and necessity for the leave requested. An employee may return from leave earlier than estimated upon approval of the employer. An employee shall provide reasonable notice to the employer of his or her need to extend leave to the extent provided by this chapter.
  6. Upon return from leave taken under this subchapter, an employee shall be offered the same or comparable job at the same level of compensation, employment benefits, seniority, or any other term or condition of the employment existing on the day leave began. This subchapter shall not apply if, prior to requesting leave, the employee had been given notice or had given notice that the employment would terminate. This subsection shall not apply if the employer can demonstrate by clear and convincing evidence that:
    1. during the period of leave the employee's job would have been terminated or the employee laid off for reasons unrelated to the leave or the condition for which the leave was granted; or
    2. the employee performed unique services and hiring a permanent replacement during the leave, after giving reasonable notice to the employee of intent to do so, was the only alternative available to the employer to prevent substantial and grievous economic injury to the employer's operation.
  7. An employer may adopt a leave policy more generous than the leave policy provided by this subchapter. Nothing in this subchapter shall be construed to diminish an employer's obligation to comply with any collective bargaining agreement or any employment benefit program or plan which provides greater leave rights than the rights provided by this subchapter. A collective bargaining agreement or employment benefit program or plan may not diminish rights provided by this subchapter. Notwithstanding the provisions of this subchapter, an employee may, at the time a need for parental or family leave arises, waive some or all the rights under this subchapter provided the waiver is informed and voluntary and any changes in conditions of employment related to any waiver shall be mutually agreed upon between employer and employee.
  8. Except for serious illness of the employee, an employee who does not return to employment with the employer who provided the leave shall return to the employer the value of any compensation paid to or on behalf of the employee during the leave, except payments for accrued sick leave or vacation leave.

    Added 1989, No. 83 , § 1; amended 1991, No. 260 (Adj. Sess.), § 4; 1997, No. 41 , § 1; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Amendments--2005 (Adj. Sess.) Subsec. (d): Substituted "Commissioner of Labor" for "commissioner of labor and industry".

Amendments--1997 Subsec. (b): Inserted "at the employee's option" following "during the leave" and "or any other accrued paid leave" preceding "not to exceed six weeks" and deleted "consistent with existing policy" thereafter in the first sentence, and substituted "paid leave" for "vacation leave" following "accrued" in the second sentence.

Subsec. (c): Added "at the level and under the conditions coverage would be provided if the employee continued in employment continuously for the duration of the leave" at the end of the first sentence, and rewrote the second sentence.

Amendments--1991 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (e): Added "in the case of the adoption or birth of a child" preceding "an employer" in the third sentence and added the fourth and sixth sentences.

Subsec. (f): Added the third sentence.

Subsec. (g): Deleted "parental" following "greater" in the second sentence and added the fourth sentence.

ANNOTATIONS

Analysis

1. Discharge of employee.

In a discharge case under Vermont's Parental and Family Leave Act (PFLA), plaintiff must demonstrate that: (1) plaintiff was an employee within the meaning of the PFLA; (2) the employer is an employer under the PFLA; (3) the employer refused to reinstate plaintiff after PFLA leave; (4) prior to requesting leave plaintiff had not been given notice or given notice "that the employment would terminate"; and (5) plaintiff was terminated for reasons related to the leave or the condition for which the leave was granted, as prohibited by the PFLA; once plaintiff makes this prima facie case, the PFLA shifts both the burden of production and the burden of persuasion to the employer to prove by clear and convincing evidence that the reasons for termination were not related to the employee's request for leave or the condition for which leave was sought. Woolaver v. State, 175 Vt. 397, 833 A.2d 849 (2002).

Once plaintiff makes a prima facie case of wrongful discharge under Vermont's Parental and Family Leave Act, both the burden of production and the burden of persuasion is shifted to the employer to prove by clear and convincing evidence that the reasons for termination were not related to the employee's request for leave or the condition for which leave was sought. Woolaver v. State, 175 Vt. 397, 833 A.2d 849 (2002).

Vermont's Parental and Family Leave Act does not protect an employee from being fired for performance reasons during the leave period, as long as the employer's decision withstands scrutiny that the firing is not related to the leave. Woolaver v. State, 175 Vt. 397, 833 A.2d 849 (2002).

Summary judgment in favor of the State on plaintiff's claim she was fired from her job while on parental leave in violation of Vermont's Parental and Family Leave Act could not be upheld because of the employer's lack of written documentation of her performance during the time she worked and because its extension of her probationary period and its failure to take action against her prior to leave remained unexplained. Woolaver v. State, 175 Vt. 397, 833 A.2d 849 (2002).

Even though plaintiff claimed that her performance problems were due to her pregnancy, Vermont's Parental and Family Leave Act neither excuses performance problems caused by the condition for which leave is taken nor requires an employer to give an employee an opportunity to show improved job performance following leave. Woolaver v. State, 175 Vt. 397, 833 A.2d 849 (2002).

2. Benefits.

Accrual of paid leave is not a "benefit" continued under the Vermont Parental and Family Leave Act. Accordingly, an employee was not entitled to accrue paid vacation and sick time during the course of an unpaid parental leave. Vt. Human Rights Comm'n v. State, 191 Vt. 485, 49 A.3d 149 (2012).

§ 472a. Short-term family leave.

  1. In addition to the leave provided in section 472 of this title, an employee shall be entitled to take unpaid leave not to exceed four hours in any 30-day period and not to exceed 24 hours in any 12-month period. An employer may require that leave be taken in a minimum of two-hour segments and may be taken for any of the following purposes:
    1. To participate in preschool or school activities directly related to the academic educational advancement of the employee's child, stepchild, foster child, or ward who lives with the employee, such as a parent-teacher conference.
    2. To attend or to accompany the employee's child, stepchild, foster child, or ward who lives with the employee or the employee's parent, spouse, or parent-in-law to routine medical or dental appointments.
    3. To accompany the employee's parent, spouse, or parent-in-law to other appointments for professional services related to their care and well-being.
    4. To respond to a medical emergency involving the employee's child, stepchild, foster child, or ward who lives with the employee or the employee's parent, spouse, or parent-in-law.
  2. An employee shall make a reasonable attempt to schedule appointments for which leave may be taken under this section outside of regular work hours. In order to take leave under this section, an employee shall provide the employer with the earliest possible notice, but in no case later than seven days, before leave is to be taken except in the case of an emergency. In this subsection, "emergency" means circumstances where the required seven day notice could have a significant adverse impact on the family member of the employee.
  3. At the employee's discretion, the employee may use accrued paid leave, including vacation and personal leave.

    Added 1997, No. 41 , § 2.

§ 472b. Town meeting leave; employees; students.

  1. Subject to the essential operation of a business or entity of State or local government, which shall prevail in any instance of conflict, an employee shall have the right to take unpaid leave from employment under this section or subsection 472(b) of this title for the purpose of attending his or her annual town meeting, provided the employee notifies the employer at least seven days prior to the date of the town meeting.
  2. A student of voting age shall have the right to attend his or her annual town meeting, and the school shall not penalize or report the student as a truant for exercising the right provided by this section.
  3. The requirement of subsection (b) shall not apply to a student who is in State custody in a secure facility.
  4. The requirement of subsection (b) shall not create an obligation for any parent, guardian, or custodian to take any affirmative action to enable the student to attend an annual town meeting.

    Added 2007, No. 124 (Adj. Sess.), § 1; amended 2013, No. 31 , § 5.

History

Amendments--2013. Subsection (a): Deleted the former second sentence.

§ 472c. Leave; crime victims.

  1. As used in this section:
    1. "Employer" means an individual, organization, governmental body, partnership, association, corporation, legal representative, trustee, receiver, trustee in bankruptcy, and any common carrier by rail, motor, water, air, or express company doing business in or operating within this State.
    2. "Employee" means a person who is a crime victim as defined in section 495d of this chapter and, in consideration of direct or indirect gain or profit, has been continuously employed by the same employer for a period of six months for an average of at least 20 hours per week.
  2. In addition to the leave provided in section 472 of this title, an employee shall be entitled to take unpaid leave from employment for the purpose of attending a deposition or court proceeding related to:
    1. a criminal proceeding, when the employee is a victim as defined in 13 V.S.A. § 5301 and the employee has a right or obligation to appear at the proceeding;
    2. a relief from abuse hearing pursuant to 15 V.S.A. § 1103 , when the employee seeks the order as plaintiff;
    3. a hearing concerning an order against stalking or sexual assault pursuant to 12 V.S.A. § 5133 , when the employee seeks the order as plaintiff; or
    4. a relief from abuse, neglect, or exploitation hearing pursuant to 33 V.S.A. chapter 69, when the employee is the plaintiff.
  3. During the leave, at the employee's option, the employee may use accrued sick leave, vacation leave, or any other accrued paid leave. Use of accrued paid leave shall not extend the leave provided pursuant to this section.
  4. The employer shall continue employment benefits for the duration of the leave at the level and under the conditions coverage would be provided if the employee continued in employment continuously for the duration of the leave. The employer may require that the employee contribute to the cost of benefits during the leave at the existing rate of employee contribution.
  5. The employer shall post and maintain in a conspicuous place in and about each of its places of business printed notices of the provisions of this section on forms provided by the Commissioner of Labor.
    1. Upon return from leave taken under this section, an employee shall be offered the same or comparable job at the same level of compensation, employment benefits, seniority, or any other term or condition of the employment existing on the day leave began. (f) (1)  Upon return from leave taken under this section, an employee shall be offered the same or comparable job at the same level of compensation, employment benefits, seniority, or any other term or condition of the employment existing on the day leave began.
    2. This subsection shall not apply if, prior to requesting leave, the employee had been given notice or had given notice that the employment would terminate.
    3. This subsection shall not apply if the employer can demonstrate by clear and convincing evidence that during the period of leave the employee's job would have been terminated or the employee would have been laid off for reasons unrelated to the leave or the condition for which the leave was granted.
  6. An employer may adopt a leave policy more generous than the leave provided by this section. Nothing in this section shall be construed to diminish an employer's obligation to comply with any collective bargaining agreement or any employment benefit program or plan that provides greater leave rights than the rights provided by this section. A collective bargaining agreement or employment benefit program or plan shall not diminish rights provided by this section. Notwithstanding the provisions of this section, an employee may, at the time a need for leave arises, waive some or all of the rights under this section, provided that the waiver is informed and voluntary and that any changes in conditions of employment related to the waiver shall be mutually agreed upon between the employer and the employee.
  7. Subsection (b) of this section shall not apply to an employer that provides goods or services to the general public if the employee's absence would require the employer to suspend all business operations at a location that is open to the general public.

    Added 2017, No. 184 (Adj. Sess.), § 3.

§ 473. Retaliation prohibited.

An employer shall not discharge or in any other manner retaliate against an employee who exercises or attempts to exercise his or her rights under this subchapter. The provisions against retaliation in subdivision 495(a)(8) of this title shall apply to this subchapter.

Added 1989, No. 83 , § 1; amended 2013, No. 31 , § 7; 2017, No. 74 , § 36.

History

Amendments--2017. Deleted "and the penalty and enforcement provisions of section 495b of this title" following "of this title" in the second sentence.

Amendments--2013. Amended generally.

ANNOTATIONS

Cited. Choudhary v. Vermont, Dep't of Pub. Serv.,, 817 F. Supp. 428 (D. Vt. 1993), aff'd, 9 F.3d 1538 (2d Cir.), cert. denied, 511 U.S. 1133, 114 S. Ct. 2148, 128 L. Ed. 2d 875 (1994).

§ 474. Penalties and enforcement.

  1. The penalty and enforcement provisions of section 495b of this title shall apply to this subchapter.
  2. An employer may bring a civil action to recover compensation paid to the employee during leave, except payments made for accrued sick leave or vacation leave, and court costs to enforce the provisions of subsection 472(h) of this title.

    Added 1989, No. 83 , § 1; amended 2013, No. 31 , § 8; 2017, No. 74 , § 37.

History

Amendments--2017. Subsec. (a): Deleted "provisions against retaliation in section 495(b) of this title and the" preceding "penalty and enforcement provisions."

Amendments--2013. Added "Penalties and" to the section heading, rewrote former subsecs. (a) and (b) as present subsec. (a), and redesignated former subsec. (c) as present subsec. (b).

Subchapter 4B. Earned Sick Time

History

Effective date of enactment of subchapter. 2015, No. 69 (Adj. Sess.) § 8(a)(2) provides in part that the amendment to this subsection "shall take effect on January 1, 2017, except that an employer that has five or fewer employees who are employed for an average of no less than 30 hours per week shall not be subject to the provisions of 21 V.S.A. chapter 5, subchapter 4b until January 1, 2018."

In addition, 2015, No. 69 (Adj. Sess.), § 8(b)(1)-(b)(2) provides:

"(b)(1) An employer may require for its existing employees on January 1, 2017 a waiting period of up to one year. The waiting period pursuant to this subsection shall begin on January 1, 2017 and shall end on or before December 31, 2017. During this waiting period, an employee shall accrue earned sick time pursuant to 21 V.S.A. § 482, but shall not be permitted to use the earned sick time until after he or she has completed the waiting period.

"(2) An employer that has five or fewer employees who are employed for an average of no less than 30 hours per week may require for its existing employees on January 1, 2018 a waiting period of up to one year. The waiting period pursuant to this subsection shall begin on January 1, 2018 and shall end on or before December 31, 2018. During this waiting period, an employee shall accrue earned sick time pursuant to 21 V.S.A. § 482, but shall not be permitted to use the earned sick time until after he or she has completed the waiting period."

§ 481. Definitions.

As used in this subchapter:

  1. "Employer" means any individual, organization, or governmental body, partnership, association, corporation, legal representative, trustee, receiver, trustee in bankruptcy, and any common carrier by rail, motor, water, air, or express company doing business in or operating within this State.
  2. "Combined time off" means a policy wherein the employer provides time off from work for vacation, sickness, or personal reasons, and the employee has the option to use all of the leave for whatever purpose he or she chooses.
  3. "Commissioner" means the Commissioner of Labor.
  4. "Earned sick time" means discretionary time earned and accrued under the provisions of this subchapter and used by an employee to take time off from work for the purposes listed in subdivisions 483(a)(1)-(5) of this subchapter.
  5. "Employee" means a person who, in consideration of direct or indirect gain or profit, is employed by an employer for an average of no less than 18 hours per week during a year. However, the term "employee" shall not include:
    1. An individual who is employed by the federal government.
    2. An individual who is employed by an employer:
      1. for 20 weeks or fewer in a 12-month period; and
      2. in a job scheduled to last 20 weeks or fewer.
    3. An individual that is employed by the State and is exempt or excluded from the State classified service pursuant to 3 V.S.A. § 311 , but not an individual that is employed by the State in a temporary capacity pursuant to 3 V.S.A. § 331 .
    4. An employee of a health care facility as defined in 18 V.S.A. § 9432(8) or a facility as defined in 33 V.S.A. § 7102(2) if the employee only works on a per diem or intermittent basis.
    5. An employee of a school district, supervisory district, or supervisory union as defined in 16 V.S.A. § 11 that:
      1. is employed pursuant to a school district or supervisory union policy on substitute educators as required by the Vermont Standards Board for Professional Educators Rule 5381;
      2. is under no obligation to work a regular schedule; and
      3. is not under contract or written agreement to provide at least one period of long-term substitute coverage which is defined as 30 or more consecutive school days in the same assignment.
    6. An individual who is under 18 years of age.
    7. An individual that is either:
      1. a sole proprietor or partner owner of an unincorporated business who is excluded from the provisions of chapter 9 of this title pursuant to subdivision 601(14)(F) of this title; or
      2. an executive officer, manager, or member of a corporation or a limited liability company for whom the Commissioner has approved an exclusion from the provisions of chapter 9 of this title pursuant to subdivision 601(14)(H) of this title.
    8. An individual that:
      1. works on a per diem or intermittent basis;
      2. works only when he or she indicates that he or she is available to work;
      3. is under no obligation to work for the employer offering the work; and
      4. has no expectation of continuing employment with the employer.
  6. "Paid time off policy" means any policy under which the employer provides paid time off from work to the employee that includes a combination of one or more of the following:
    1. annual leave;
    2. combined time off;
    3. vacation leave;
    4. personal leave;
    5. sick leave; or
    6. any similar type of leave.

      Added 2015, No. 69 (Adj. Sess.), § 4, eff. Jan. 1, 2017.

§ 482. Earned sick time.

  1. An employee shall accrue not less than one hour of earned sick time for every 52 hours worked.
  2. An employer may require a waiting period for newly hired employees of up to one year. During this waiting period, an employee shall accrue earned sick time pursuant to this subchapter, but shall not be permitted to use the earned sick time until after he or she has completed the waiting period.
  3. An employer may:
    1. limit the amount of earned sick time accrued pursuant to this section to:
      1. from January 1, 2017 until December 31, 2018, a maximum of 24 hours in a 12-month period; and
      2. after December 31, 2018, a maximum of 40 hours in a 12-month period; or
    2. limit to 40 hours the number of hours in each workweek for which full-time employees not subject to the overtime provisions of the Federal Fair Labor Standards Act, 29 U.S.C. § 213(a) (1), may accrue earned sick time pursuant to this section.
    1. Earned sick time shall be compensated at a rate that is equal to the greater of either: (d) (1)  Earned sick time shall be compensated at a rate that is equal to the greater of either:
      1. the normal hourly wage rate of the employee; or
      2. the minimum wage rate for an employee pursuant to section 384 of this title.
    2. Group insurance benefits shall continue during an employee's use of earned sick time at the same level and conditions that coverage would be provided as for normal work hours. The employer may require that the employee contribute to the cost of the benefits during the use of earned sick time at the existing rate of employee contribution.
  4. Except as otherwise provided by subsection 484(a) of this subchapter, an employer shall calculate the amount of earned sick time that an employee has accrued pursuant to this section:
    1. as it accrues during each pay period; or
    2. on a quarterly basis, provided that an employee may use earned sick time as he or she accrues it during each quarter.

      Added 2015, No. 69 (Adj. Sess.), § 4, eff. Jan. 1, 2017.

§ 483. Use of earned sick time.

  1. An employee may use earned sick time accrued pursuant to section 482 of this subchapter for any of the following reasons:
    1. The employee is ill or injured.
    2. The employee obtains professional diagnostic, preventive, routine, or therapeutic health care.
    3. The employee cares for a sick or injured parent, grandparent, spouse, child, brother, sister, parent-in-law, grandchild, or foster child, including helping that individual obtain diagnostic, preventive, routine, or therapeutic health treatment, or accompanying the employee's parent, grandparent, spouse, or parent-in-law to an appointment related to his or her long-term care.
    4. The employee is arranging for social or legal services or obtaining medical care or counseling for the employee or for the employee's parent, grandparent, spouse, child, brother, sister, parent-in-law, grandchild, or foster child, who is a victim of domestic violence, sexual assault, or stalking or who is relocating as the result of domestic violence, sexual assault, or stalking. As used in this section, "domestic violence," "sexual assault," and "stalking" shall have the same meanings as in 15 V.S.A. § 1151 .
    5. The employee cares for a parent, grandparent, spouse, child, brother, sister, parent-in-law, grandchild, or foster child, because the school or business where that individual is normally located during the employee's workday is closed for public health or safety reasons.
  2. If an employee's absence is shorter than a normal workday, the employee shall use earned sick time accrued pursuant to section 482 of this subchapter in the smallest time increments that the employer's payroll system uses to account for other absences or that the employer's paid time off policy permits. Nothing in this subsection shall be construed to require an employer to permit an employee to use earned sick time in increments that are shorter than one hour.
  3. An employer may limit the amount of earned sick time accrued pursuant to section 482 of this subchapter that an employee may use to:
    1. from January 1, 2017 until December 31, 2018, no more than 24 hours in a 12-month period; and
    2. after December 31, 2018, no more than 40 hours in a 12-month period.
    1. Except as otherwise provided in subsection 484(a) of this subchapter, earned sick time that remains unused at the end of an annual period shall be carried over to the next annual period and the employee shall continue to accrue earned sick time as provided pursuant to section 482 of this subchapter. However, nothing in this subdivision shall be construed to permit an employee to use more earned sick time during an annual period than any limit on the use of earned sick time that is established by his or her employer pursuant to subsection (c) of this section. (d) (1)  Except as otherwise provided in subsection 484(a) of this subchapter, earned sick time that remains unused at the end of an annual period shall be carried over to the next annual period and the employee shall continue to accrue earned sick time as provided pursuant to section 482 of this subchapter. However, nothing in this subdivision shall be construed to permit an employee to use more earned sick time during an annual period than any limit on the use of earned sick time that is established by his or her employer pursuant to subsection (c) of this section.
    2. If, at an employer's discretion, an employer pays an employee for unused earned sick time accrued pursuant to section 482 of this subchapter at the end of an annual period, then the amount for which the employee was compensated does not carry over to the next annual period.
  4. Upon separation from employment, an employee shall not be entitled to payment for unused earned sick time accrued pursuant to section 482 of this subchapter unless agreed upon by the employer.
    1. An employee who is discharged by his or her employer after he or she has completed a waiting period required pursuant to subsection 482(b) of this subchapter and is subsequently rehired by the same employer within 12 months after the discharge from employment shall begin to accrue and may use earned sick time without a waiting period. However, the employee shall not be entitled to retain any earned sick time that accrued before the time of his or her discharge unless agreed to by the employer. (f) (1)  An employee who is discharged by his or her employer after he or she has completed a waiting period required pursuant to subsection 482(b) of this subchapter and is subsequently rehired by the same employer within 12 months after the discharge from employment shall begin to accrue and may use earned sick time without a waiting period. However, the employee shall not be entitled to retain any earned sick time that accrued before the time of his or her discharge unless agreed to by the employer.
    2. An employee that voluntarily separates from employment after he or she has completed a waiting period required pursuant to subsection 482(b) of this subchapter and is subsequently rehired by the same employer within 12 months after the separation from employment shall not be entitled to accrue and use earned sick time without a waiting period unless agreed to by the employer.
  5. An employer shall not require an employee to find a replacement for absences, including absences for professional diagnostic, preventive, routine, or therapeutic health care.
  6. An employer may require an employee planning to take earned sick time accrued pursuant to section 482 of this subchapter to:
    1. make reasonable efforts to avoid scheduling routine or preventive health care during regular work hours; or
    2. notify the employer as soon as practicable of the intent to take earned sick time accrued pursuant to section 482 of this subchapter and the expected duration of the employee's absence.
    1. If an employee is absent from work for one of the reasons listed in subsection (a) of this section, the employee shall not be required to use earned sick time accrued pursuant to section 482 of this subchapter and the employer will not be required to pay for the time that the employee was absent if the employer and the employee mutually agree that either: (i) (1)  If an employee is absent from work for one of the reasons listed in subsection (a) of this section, the employee shall not be required to use earned sick time accrued pursuant to section 482 of this subchapter and the employer will not be required to pay for the time that the employee was absent if the employer and the employee mutually agree that either:
      1. the employee will work an equivalent number of hours as the number of hours for which the employee is absent during the same pay period; or
      2. the employee will trade hours with a second employee so that the second employee works during the hours for which the employee is absent and the employee works an equivalent number of hours in place of the second employee during the same pay period.
    2. Nothing in this subsection shall be construed to prevent an employer from adopting a policy that requires an employee to use earned sick time accrued pursuant to section 482 of this subchapter for an absence from work for one of the reasons set forth in subsection (a) of this section.
  7. An employer shall post notice of the provisions of this section in a form provided by the Commissioner in a place conspicuous to employees at the employer's place of business. An employer shall also notify an employee of the provisions of this section at the time of the employee's hiring.
  8. An employee who uses earned sick time accrued pursuant to section 482 of this subchapter shall not diminish his or her rights under sections 472 and 472a of this title.
  9. The provisions against retaliation set forth in section 397 of this title shall apply to this subchapter.
  10. An employer who violates this subchapter shall be subject to the penalty provisions of section 345 of this title.
  11. The Commissioner shall enforce this subchapter in accordance with the procedures established in section 342a of this title. However, the appeal provision of subsection 342a(f) shall not apply to any enforcement action brought pursuant to this subsection.

    Added 2015, No. 69 (Adj. Sess.), § 4, eff. Jan. 1, 2017.

§ 484. Compliance with earned sick time requirement.

  1. An employer shall be in compliance with this subchapter if either of the following occurs:
    1. The employer offers a paid time off policy or is a party to a collective bargaining agreement that provides the employee with paid time off from work that:
      1. he or she may use for all of the reasons set forth in subsection 483(a) of this subchapter; and
      2. accrues and may be used at a rate that is equal to or greater than the rate set forth in sections 482 and 483 of this subchapter.
    2. The employer offers a paid time off policy or is a party to a collective bargaining agreement that provides the employee with at least the full amount of paid time off from work required pursuant to sections 482 and 483 of this subchapter at the beginning of each annual period and the employee may use it at any time during the annual period for the reasons set forth in subsection 483(a) of this subchapter. If the employer provides an employee with the full amount of paid time off at the beginning of each annual period, the paid time off shall not carry over from one annual period to the next as provided in subdivision 483(d)(1) of this subchapter.
  2. Nothing in this subchapter shall be construed to require an employer that satisfies the requirements of subsection (a) of this section to provide additional earned sick time to an employee that chooses to use paid time off that could be used for the reasons set forth in subdivisions 483(a)(1)-(5) of this subchapter for a different purpose.
  3. Nothing in this subchapter shall be construed to prevent an employer from providing a paid time off policy or agreeing to a collective bargaining agreement that provides a paid time off policy that is more generous than the earned sick time provided by this subchapter.
    1. Nothing in this subchapter shall be construed to diminish an employer's obligation to comply with any collective bargaining agreement or paid time off policy that provides greater earned sick time rights than the rights provided by this subchapter. (d) (1)  Nothing in this subchapter shall be construed to diminish an employer's obligation to comply with any collective bargaining agreement or paid time off policy that provides greater earned sick time rights than the rights provided by this subchapter.
    2. Nothing in this subchapter shall be construed to preempt or override the terms of a collective bargaining agreement that is in effect before January 1, 2017.
  4. A collective bargaining agreement or paid time off policy may not diminish the rights provided by this subchapter.

    Added 2015, No. 69 (Adj. Sess.), § 4, eff. Jan. 1, 2017.

§ 485. Severability of provisions.

If any provision of this subchapter or the application of such provision to any person or circumstances shall be held invalid, the remainder of the subchapter and the application of such provisions to persons or circumstances other than those as to which it is held invalid shall not be affected thereby.

Added 2015, No. 69 (Adj. Sess.), § 4, eff. Jan. 1, 2017.

§ 486. New employer exemption.

  1. Notwithstanding any provision of this subchapter to the contrary, new employers shall not be subject to the provisions of this subchapter for a period of one year after the employer hires its first employee.
  2. For purposes of enforcement under subsections 483(l)-(n) of this subchapter, an employer shall be presumed to be subject to the provisions of this subchapter unless the employer proves that a period of no more than one year elapsed between the date on which the employer hired its first employee and the date on which the employer is alleged to have violated the provisions of this subchapter.
  3. No employer shall transfer an employee to a second employer with whom there is, at the time of the transfer, substantially common ownership, management, or control for the purposes of either employer claiming an exemption pursuant to subsection (a) of this section.

    Added 2015, No. 69 (Adj. Sess.), § 4, eff. Jan. 1, 2017.

§ 487. Rules.

The Commissioner may adopt rules to implement the provisions of this subchapter.

Added 2015, No. 172 (Adj. Sess.), § E.400.1, eff. Jan. 1, 2017.

Subchapter 5. Employment Rights for Reserve and National Guard Members

History

Amendments--1999 (Adj. Sess.). 1999, No. 138 (Adj. Sess.), § 6, rewrote the subchapter heading.

§ 491. Absence on military service and training; employment and reemployment rights.

    1. Any duly qualified member of the Reserve Components of the U.S. Armed Forces, of the Ready Reserve, or an organized unit of the Vermont National Guard or the National Guard of another state shall, when called to state or federal service, receive the same benefits, privileges, and protections in employment regardless of the activation authority or location of service. (a) (1)  Any duly qualified member of the Reserve Components of the U.S. Armed Forces, of the Ready Reserve, or an organized unit of the Vermont National Guard or the National Guard of another state shall, when called to state or federal service, receive the same benefits, privileges, and protections in employment regardless of the activation authority or location of service.
      1. Upon request, a duly qualified member of the Reserve Components of the U.S. Armed Forces, of the Ready Reserve, or the Vermont National Guard or the National Guard of another state shall be entitled to a leave of absence to engage in military drill, training, or other temporary duty pursuant to state or federal military orders. (2) (A) Upon request, a duly qualified member of the Reserve Components of the U.S. Armed Forces, of the Ready Reserve, or the Vermont National Guard or the National Guard of another state shall be entitled to a leave of absence to engage in military drill, training, or other temporary duty pursuant to state or federal military orders.
      2. A member of the Vermont National Guard or the National Guard of any state or territory who is ordered to state active duty shall be subject to the requirements of and entitled to the rights, privileges, benefits, and protections provided by the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. §§ 4301-4335.
      3. A leave of absence shall be with or without pay as determined by the employer.
  1. A member of or an applicant for membership in the National Guard in either federal or state status as defined in 20 V.S.A. §§ 366 and 601 shall not be denied initial employment, reemployment, retention of employment, promotion, or any benefit of employment by an employer on the basis of membership, application for membership, performance of service, application for service, or obligation to serve.
  2. An employer shall not discriminate in employment against any person because a person has taken any of the following actions:
    1. enforcement of a provision of this subchapter or federal law;
    2. testified or made a statement in connection with any proceeding under this subchapter or under federal law;
    3. assisted or participated in any investigation under this subchapter or federal law; or
    4. exercised any right provided by this subchapter or under federal law.

      Amended 1999, No. 138 (Adj. Sess.), § 6; 2007, No. 44 , § 1; 2015, No. 121 (Adj. Sess.), § 1; 2021, No. 10 , § 72.

History

Source. 1955, No. 24 , § 1.

Amendments--2021. Subsec. (a): Amended generally.

Subsec. (b): Inserted "and" preceding "601" and deleted ", or 602," following "601".

Amendments--2015 (Adj. Sess.). Subsec. (a): Substituted "Reserve Components of the U.S. Armed Forces" for "'reserve components of the armed forces'", and "Vermont National Guard or the National Guard of another state" for "national guard".

Subsec. (c): Substituted "this subchapter" for "this subsection" throughout the subsection.

Amendments--2007 Subsec. (a): Amended generally.

Amendments--1999 (Adj. Sess.) Section amended generally.

§ 492. Rights and benefits.

  1. Any absence for military training or State active duty shall not affect the employee's right to receive normal vacation, sick leave, bonus, advancement, and other advantages of employment normally to be anticipated in the employee's particular position.
  2. Any person who is absent from employment necessitated by service in the National Guard as permitted under section 491 of this title shall be entitled to the reemployment rights and benefits provided in 38 U.S.C. §§ 4312-4318.
    1. If any member of the Vermont National Guard with civilian employer-sponsored insurance coverage is ordered to State active duty by the Governor for up to 30 days, or if any member of the National Guard of another state who is a Vermont employee with civilian employer-sponsored insurance is ordered to state active duty by the Governor of that state for up to 30 days, the service member may, at the member's option, continue his or her civilian health insurance under the same terms and conditions as were in effect for the month preceding the member's call to state active duty, including a continuation of the same levels of employer and employee contributions toward premiums and cost-sharing. (c) (1)  If any member of the Vermont National Guard with civilian employer-sponsored insurance coverage is ordered to State active duty by the Governor for up to 30 days, or if any member of the National Guard of another state who is a Vermont employee with civilian employer-sponsored insurance is ordered to state active duty by the Governor of that state for up to 30 days, the service member may, at the member's option, continue his or her civilian health insurance under the same terms and conditions as were in effect for the month preceding the member's call to state active duty, including a continuation of the same levels of employer and employee contributions toward premiums and cost-sharing.
    2. If a member of the Vermont National Guard is called to State active duty for more than 30 days, or if a member of the National Guard of another state who is a Vermont employee is called to state active duty for more than 30 days, the member may continue his or her civilian health insurance. For a member whose employer chooses not to continue regular contributions toward premiums and cost-sharing during the period of the member's state active duty in excess of 30 days, the State of Vermont shall be responsible for paying the employer's share of the premium and cost-sharing.
    3. The Office of the Adjutant General shall administer this subsection and may adopt policies, procedures, and guidelines to carry out the purposes of this subsection, including developing employee notice requirements, enforcement provisions, and a process for the State to remit the employer's share of premiums and cost-sharing to the appropriate entities pursuant to subdivision (2) of this subsection.

      Amended 1999, No. 138 (Adj. Sess.), § 6; 2011, No. 149 (Adj. Sess.), § 6; 2015, No. 121 (Adj. Sess.), § 2.

History

Source. 1955, No. 24 , § 2.

Amendments--2015 (Adj. Sess.). Subdiv. (c)(1): Inserted ", or if any member of the National Guard of another state who is a Vermont employee with civilian employer-sponsored insurance is ordered to state active duty by the governor of that state for up to 30 days".

Subdiv. (c)(2): Inserted ", or if a member of the National Guard of another state who is a Vermont employee is called to state active duty for more than 30 days".

Amendments--2011 (Adj. Sess.). Subsec. (c): Added.

Amendments--1999 (Adj. Sess.). Designated existing provisions of the section as subsec. (a), substituted "Any absence" for "Such absence", inserted "or state active duty" following "military training", deleted "his" preceding "employment normally", substituted "the employee's" for "his" preceding "particular position" in that subsection and added subsec. (b).

ANNOTATIONS

1. Vacations.

Under this section a member of the National Guard who has been given vacations as a regular part of his civilian employment is legally entitled to such vacations in addition to his time off for military training. 1958-60 Op. Atty. Gen. 34.

§ 493. Enforcement.

  1. If any employer fails to comply with any of the provisions of this subchapter, the employee may bring an action in the Civil Division of the Superior Court seeking compensatory and punitive damages or equitable relief, including restraint of prohibited acts, restitution of wages or other benefits, reinstatement, costs, reasonable attorney's fees, and other appropriate relief.
  2. The Attorney General or a State's Attorney may enforce the provisions of this subchapter by bringing an action in Superior Court for legal and equitable relief and may conduct civil investigations in accordance with the procedures established in 9 V.S.A. §§ 2458-2461 as though a violation of this subchapter were an unfair act in commerce.

    Amended 1999, No. 138 (Adj. Sess.), § 6a; 2015, No. 121 (Adj. Sess.), § 3.

History

Source. 1955, No. 24 , § 3.

Revision note. Reference to "court of chancery" changed to "Superior Court" pursuant to 1971, No. 185 (Adj. Sess.), § 236(d) and 1973, No. 193 (Adj. Sess.), § 3. See notes set out under §§ 71 and 219 of Title 4.

Amendments--2015 (Adj. Sess.). Subsec. (a): Substituted "in the Civil Division of the Superior Court seeking compensatory and punitive damages or equitable relief, including restraint of prohibited acts, restitution of wages or other benefits, reinstatement, costs, reasonable attorney's fees, and other appropriate relief" for "at law for damages for noncompliance, or apply to the superior court for equitable relief as may be just and proper under the circumstances".

Amendments--1999 (Adj. Sess.). Designated the existing provisions of the section as subsec. (a), deleted "at his election" following "employee may", "such" preceding "noncompliance", "such" preceding "equitable relief" of that subsec. and added subsec. (b).

Subchapter 5A. Polygraph Protection Act

Cross References

Cross references. Drug testing of employees of applicant for employment, see § 511 et seq. of this title.

§ 494. Definitions.

As used in this subchapter:

  1. "Employer" means any individual, organization, or governmental body, including partnership, association, trustee, estate, corporation, joint stock company, insurance company, or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, and any common carrier by mail, motor, water, air, or express company doing business in or operating within this State, which has one or more individuals performing services for it within this State.
  2. "Employee" means every person who may be permitted, required, or directed by any employer, in consideration of direct or indirect gain or profit, to perform services.
  3. "Prospective employee" means an individual seeking or being sought for employment with an employer.
  4. "Employment agency" means a person who undertakes, with or without compensation, to procure, refer, recruit, or place for an employer or person, the opportunity to work for an employer.
  5. "Examiner" means any person licensed under 26 V.S.A. chapter 53.
  6. "Polygraph examination" means any procedure which involves the use of instrumentation or a mechanical device to enable or assist the detection of deception, the verification of the truthfulness, or the rendering of a diagnostic opinion regarding either of these, and includes a lie detector or similar test.

    Added 1985, No. 89 .

History

2016. In subdiv. (5), substituted "26 V.S.A. chapter 53" for "chapter 53 of Title 26" to conform reference to V.S.A. style.

§ 494a. Polygraph testing as condition of employment.

  1. Except as provided in section 494b of this title, an employer or an employment agency shall not as a condition of employment, promotion, or change in status of employment, or as an express or implied condition of a benefit or privilege of employment, do any of the following:
    1. request or require that an employee or applicant for employment take or submit to a polygraph examination; or
    2. administer, cause to be administered, threaten to administer, or attempt to administer a polygraph examination to an employee or applicant for employment; or
    3. request or require that an employee or applicant for employment give an express or implied waiver of a practice prohibited under this subchapter.
  2. An employer shall not refuse to hire, promote, or change the status of employment of an applicant for employment because the applicant refuses or declines a polygraph examination.

    Added 1985, No. 89 .

History

Revision note. In subsec. (a), substituted "section 494b of this title" for "section 494b" to conform reference to V.S.A. style.

ANNOTATIONS

1. Unemployment benefits claim.

Court rejected the argument of a claimant for unemployment benefits that the employer's violations of the workers' compensation reporting requirement and its arguable violation of the prohibition against employer-mandated polygraphs provided per se good cause for the claimant to quit her job. The referee and the Employment Security Board found that the claimant prematurely quit because she was offended by the employer's suggestion that she was lying about the circumstances surrounding her back injury, not because she felt threatened that she would be fired if she refused to take a polygraph test; furthermore, there was no evidence that the claimant faced having to forego her workers' compensation claim. Quick v. Dep't of Labor, 187 Vt. 585, 992 A.2d 1028 (mem.) (2009).

§ 494b. Employers permitted to require polygraph examinations.

The following employers may require that an applicant for employment take or submit to a polygraph examination, or administer or cause to be administered a polygraph examination to an applicant for employment:

  1. the Department of Public Safety; the Department of Motor Vehicles, for applicants for law enforcement positions; the Department of Fish and Wildlife, for applicants for law enforcement positions; the Department of Liquor and Lottery and the Board of Liquor and Lottery, for applicants for investigator positions; municipal police departments and county sheriffs, as to sworn police officers and deputy sheriffs;
  2. any employer whose primary business is the wholesale or retail sale of precious metals or gems and jewelry or items made from precious metals or gems;
  3. any employer whose business includes the manufacture or the wholesale or retail sale of regulated drugs as defined in 18 V.S.A. § 4201 ; provided, however, that only employees who come in contact with such regulated drugs may be required to take a polygraph examination;
  4. any employer authorized or required under federal law or regulations to administer polygraph examinations.

    Added 1985, No. 89 ; amended 2001, No. 38 , § 1; 2009, No. 5 , § 1; 2019, No. 73 , § 35.

History

2016. In subdiv. (3), substituted "18 V.S.A. § 4201" for "section 4201 of Title 18" to conform reference to V.S.A. style.

Amendments--2019. Subdiv. (1): Substituted "Department of Liquor and Lottery" for "Department of Liquor Control" and "Board of Liquor and Lottery" for "Liquor Control Board".

Amendments--2009. Subdiv. (1): Inserted "the Department of Fish and Wildlife, for applicants for law enforcement positions; the Department of Liquor Control and the Liquor Control Board for applicants for investigator positions" following "positions".

Subdiv. (3): Made a minor change in punctuation.

Amendments--2001. Subdiv. (1): Inserted "the Department of Motor Vehicles, for applicants for law enforcement positions" following "Public Safety".

§ 494c. Duties of examiner.

  1. An examiner administering a polygraph examination under this subchapter shall:
    1. Prior to the examination, provide the examinee with a copy of this subchapter and a copy of all questions to be asked during the examination, which may be retained by the examinee.  This does not preclude follow-up questions as long as the examiner gives the examinee a copy of the questions.
    2. Inform the examinee as follows:
      1. the examinee has the right to accept or refuse the examination;
      2. the examinee has the right to halt an examination in progress at any time;
      3. the examinee is not required to answer any questions or give any information;
      4. any information the examinee volunteers could be used against the examinee, or made available to the employer, unless otherwise specified and agreed to in writing by the examinee; and
      5. provide the examinee with a copy of the examination results and all reports or analyses done by the examiner which are shared with the employer.
  2. During a polygraph examination, an examinee shall not be asked:
    1. any questions regarding the examinee's political, religious, or labor union affiliations;
    2. questions regarding the examinee's sexual practices, social habits, or his or her marital relationship, unless the questions clearly relate to job performance;
    3. questions which are unrelated to job performance.

      Added 1985, No. 89 .

§ 494d. Employee rights in related proceedings.

No employee shall be discharged, disciplined or discriminated against in any manner for filing a complaint or testifying in any proceeding or action involving violations of the provisions of this subchapter. An employee discriminated against in violation of the provisions of this section shall be compensated by his or her employer the amount of any loss of wages and benefits arising out of such discrimination and shall be restored to his or her previous position of employment.

Added 1985, No. 89 .

§ 494e. Penalties.

Any individual violating any of the provisions of this subchapter shall be fined not less than $500.00 nor more than $1,000.00 or imprisoned not more than six months, or both, and the penalty shall not be suspended.

Added 1985, No. 89 .

Subchapter 6. Fair Employment Practices

History

Legislative findings. 2011, No. 154 (Adj. Sess.), § 1 provides: "The General Assembly finds that:

"(1) Studies on middle and low income households have found that most indebted families go into debt to pay for basic expenses, such as groceries, utilities, child care, and health care. A study has shown that families with medical debt had 43 percent more credit card debt than those without medical debt.

"(2) Employer surveys conducted by the Society of Human Resources Management suggest that over the last 15 years, employers' use of credit reports in the hiring process has increased from a practice used by fewer than one in five employers in 1996 to six of every 10 employers in 2010.

"(3) Social science research thus far has shown that information contained in a credit report has no correlation to job performance. The Palmer-Koppes study conducted in 2004 found that those employees who were late on payments were more likely to be associated with a positive job performance.

"(4) Further, there is no common standard among employers as to how to interpret credit reports, which reinforces the fact that credit reports do not provide meaningful insight into a candidate's character, responsibility, or prospective job performance.

"(5) The Equal Employment Opportunity Commission has stated that: 'Inquiry into an applicant's current or past assets, liabilities, or credit rating . . . generally should be avoided because they tend to impact more adversely on minorities and females.'"

Legislative findings. 2013, No. 31 , § 1 provides: "The General Assembly finds:

"(1) Pay inequity has been illegal since President Kennedy signed the Equal Pay Act in 1963 and Vermont outlawed pay discrimination in the Fair Employment Act the same year. In 1965, President Johnson signed Executive Order 11246, which requires federal contractors to certify their compliance with federal nondiscrimination laws, including the Equal Pay Act.

"(2) Notwithstanding these laws and notwithstanding the fact that women today make up nearly half of the workforce, pay inequity remains a persistent problem. Nationally, women earn roughly 78 percent of what their male counterparts earn. In Vermont, women fare only slightly better, earning roughly 84 cents per dollar earned by men, according to the National Partnership for Women and Families.

"(3) Pay inequity affects all households. Nationally nearly 40 percent of mothers bring home the majority of their family's earnings, and nearly 63 percent of mothers bring home at least a quarter of their family's income.

"(4) Research has shown that pay inequity may arise even if an employer does not specifically intend to discriminate against workers based on sex. For example, some employees may not have a fair opportunity to negotiate pay because they lack the opportunity to know what similarly situated employees earn. Other employees may avoid or be channeled into lower-paying assignments or career paths that are viewed as more compatible with family needs. Other employees may temporarily drop out of the workforce because there is insufficient workplace flexibility; when such employees do return to the workforce, they may be unable to catch up to employees performing the same work.

"(5) A number of European countries, such as Great Britain, France, and Germany, have successfully implemented laws that grant employees the right to ask for flexible workplace arrangements without fear of retaliation and that require employers to consider such requests in good faith. Employers with flexible, family-friendly policies tend to have lower rates of absenteeism, lower rates of employee turnover, and higher worker productivity.

"(6) Research has also shown that short paid parental leaves tend to keep women in the labor force longer and that women who take such leaves tend not to earn less than their male counterparts."

ANNOTATIONS

Analysis

1. Generally.

Fair Employment Practices Act makes it unlawful for an employer to discriminate against any individual because of her sex. Graff v. Eaton, 157 Vt. 321, 598 A.2d 1383 (1991).

2. Construction with federal laws.

The Fair Employment Practices Act's handicap discrimination provisions were modeled on federal legislation; therefore, federal case law and regulations provide guidelines for construing them. Lowell v. International Business Machines Corp., 955 F. Supp. 300 (D. Vt. 1997).

Vermont's Fair Employment Practices Act is patterned on Title VII, and the legal analysis to be followed derives from McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Violette v. International Business Machines Corp., 962 F. Supp. 446 (D. Vt. 1996), aff'd, 116 F.3d 466 (2d Cir. 1997).

It is appropriate for court to look to federal law arising under Title VII of Civil Rights Act of 1964 and section 504 of Rehabilitation Act in interpreting provisions of this subchapter concerning discrimination against handicapped individuals. Mancini v. General Electric Co.,, 820 F. Supp. 141 (D. Vt. 1993).

Under Title VII of the Civil Rights Act of 1964, after which the Fair Employment Practices Act is patterned, when plaintiff proves that a discriminatory reason, such as gender, played a motivating factor in an employment decision, the burden of persuasion then falls upon, and remains with, the employer to prove by a preponderance of the evidence that it would have made the same decision even if it had not taken plaintiff's gender into account. Graff v. Eaton, 157 Vt. 321, 598 A.2d 1383 (1991).

This subchapter is patterned on Title VII of the Civil Rights Act of 1964, and the standards and burdens of proof under this subchapter are identical to those under Title VII. Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 624 A.2d 1122 (1992).

Vermont's Fair Employment Practices Act is patterned on Title VII, and the legal analysis to be followed derives from McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Violette v. International Business Machines Corp., 962 F. Supp. 446 (D. Vt. 1996), aff'd, 116 F.3d 466 (2d Cir. 1997).

This subchapter is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the standards and burdens of proof under state law are identical to those existing under federal law. Cobb v. Dufresne-Henry, Inc., 603 F. Supp. 1048 (D. Vt. 1985).

By virtue of the provisions of this subchapter, Vermont is a "deferral state" within the meaning of the Federal Age Discrimination in Employment Act,, 19 U.S.C. § 621 et seq. Galvin v. Vermont, 598 F. Supp. 144 (D. Vt. 1984).

Since Vermont is a deferral state within the framework of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. due to its enactment of this subchapter, the Equal Employment Opportunity Commission is required to defer for sixty days to the Civil Rights Division of the Vermont Attorney General's Office before proceeding to process charges of employment discrimination. Valente v. Moore Business Forms, Inc., 596 F. Supp. 1280 (D. Vt. 1984).

This subchapter is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the standards and burdens of proof to be applied to a case under this subchapter are identical to those for a Title VII case. Sprague v. University of Vermont, 661 F. Supp. 1132 (D. Vt. 1987).

3. Elements of claim.

In order for a plaintiff to prevail on a hostile environment sexual harassment claim under this chapter the plaintiff must prove that the harassment was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment and the plaintiff must show that a specific basis exists for imputing the conduct that created the hostile environment to the employer. Perry v. Ethan Allen, Inc., 115 F.3d 143 (2d Cir. 1997).

Although the jury found that plaintiff established that she had been sexually harassed through exposure to a hostile work environment, her claim failed because she was unable to demonstrate that management failed to implement prompt and appropriate corrective action in response to her complaint. Perry v. Ethan Allen, Inc., 115 F.3d 143 (2d Cir. 1997).

4. Jury instructions.

Trial judge properly instructed jury that in order to find intentional discrimination, jury had to find that plaintiff's physical impairment was a motivating factor in her termination. Knapp v. State, 168 Vt. 590, 729 A.2d 719 (mem.) (1998).

Trial judge failed to properly instruct jury as to shifting burdens of proof in employment discrimination case based on handicap; jury should have been instructed that if plaintiff showed that her handicap was a motivating factor in her termination, her employer then had to prove that it would have made same decision even absent discriminatory motive. Knapp v. State, 168 Vt. 590, 729 A.2d 719 (mem.) (1998).

At trial for discrimination on the basis of gender, court erred by not instructing jury that, if it were to find plaintiff had shown that gender was a motivating factor in the employment decision, then defendants had to prove that they would have made the same decision even absent the discriminatory motive. Graff v. Eaton, 157 Vt. 321, 598 A.2d 1383 (1991).

At trial for discrimination on the basis of gender, where plaintiff was offered an editor's position but declined the position because of defendant's refusal to grant plaintiff a flextime work schedule, and plaintiff presented evidence that gender was a motivating factor in defendant's decision not to hire her, but court failed to instruct the jury as to defendant's burden of proof that they would have made the same decision even absent the discriminatory motive, case was reversed and remanded, since jury had to determine whether the evidence offered by plaintiff was credible and whether it played a motivating role in the employment decision. Graff v. Eaton, 157 Vt. 321, 598 A.2d 1383 (1991).

5. Right to jury trial.

Where factual issues are in dispute, parties to an action under this subchapter are entitled to trial by jury when the plaintiff requests legal damages. Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 624 A.2d 1122 (1992).

In handicap and sex-discrimination action brought under this subchapter, plaintiff was not entitled to trial by jury where complaint requested "back pay, restitution of wages, and other benefits including salary increases, costs, reasonable attorney fees and such other relief as the court deems just and proper"; complaint listed only equitable forms of relief and "other relief that the court deems just and proper" could not be construed to include legal damages. Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 624 A.2d 1122 (1992).

6. Preemption.

To the extent that plaintiff's common law wrongful termination claims were based on assertions of disability discrimination, they were preempted by Fair Employment Practices Act. Decker v. Vermont Educational Television, Inc., 13 F. Supp. 2d 569 (D. Vt. 1998).

7. Construction with other laws .

Vermont Fair Employment Practices Act actions are not barred by the exclusivity provision of the Workers' Compensation Act. Gallipo v. City of Rutland, 173 Vt. 223, 789 A.2d 942 (2001).

Because an employer can take actions against an employee, producing mental injury and motivated in part by unlawful discrimination, without having the specific intent to injure the employee, it was not inconsistent for plaintiff to claim that he was injured by an accident for workers' compensation purposes and to also claim he was injured by unlawful discrimination. Gallipo v. City of Rutland, 173 Vt. 223, 789 A.2d 942 (2001).

Superior court acted correctly in dismissing plaintiff firefighter's discrimination action against fire chief under the Vermont Fair Employment Practices Act because statute pertaining to actions by or against municipal officers required that the action be brought against the city. Gallipo v. City of Rutland, 173 Vt. 223, 789 A.2d 942 (2001).

8. Disability.

Arbitrator's findings that because of her allergies, plaintiff teacher's avoiding key learning areas would "alter the character of her teaching position" and would "significantly diminish her ability to perform critical educational functions with students" compelled legal conclusion that she could not perform essential functions of her job; therefore she was not a "qualified individual with a disability" entitled to relief, and her claim for disability discrimination was properly dismissed. Mellin v. Flood Brook Union School District, 173 Vt. 202, 790 A.2d 408 (2001).

Cited. Fleury v. Kessel/Duff Construction, 156 Vt. 406, 592 A.2d 904 (1991).

§ 495. Unlawful employment practice.

  1. It shall be unlawful employment practice, except where a bona fide occupational qualification requires persons of a particular race, color, religion, national origin, sex, sexual orientation, gender identity, ancestry, place of birth, age, crime victim status, or physical or mental condition:
    1. For any employer, employment agency, or labor organization to discriminate against any individual because of race, color, religion, ancestry, national origin, sex, sexual orientation, gender identity, place of birth, crime victim status, or age or against a qualified individual with a disability;
    2. For any person seeking employees or for any employment agency or labor organization to cause to be printed, published, or circulated any notice or advertisement relating to employment or membership indicating any preference, limitation, specification, or discrimination based upon race, color, religion, ancestry, national origin, sex, sexual orientation, gender identity, place of birth, crime victim status, age, or disability;
    3. For any employment agency to fail or refuse to classify properly or refer for employment or to otherwise discriminate against any individual because of race, color, religion, ancestry, national origin, sex, sexual orientation, gender identity, place of birth, crime victim status, or age or against a qualified individual with a disability;
    4. For any labor organization, because of race, color, religion, ancestry, national origin, sex, sexual orientation, gender identity, place of birth, crime victim status, or age to discriminate against any individual or against a qualified individual with a disability or to limit, segregate, or qualify its membership;
    5. For any employer, employment agency, labor organization, or person seeking employees to discriminate against, indicate a preference or limitation, refuse properly to classify or refer, or to limit or segregate membership on the basis of a person's having a positive test result from an HIV-related blood test;
    6. For any employer, employment agency, labor organization, or person seeking employees to request or require an applicant, prospective employee, employee, prospective member, or member to have an HIV-related blood test as a condition of employment or membership, classification, placement, or referral;
    7. For any employer, employment agency, labor organization, or person seeking employees to discriminate between employees on the basis of sex by paying wages to employees of one sex at a rate less than the rate paid to employees of the other sex for equal work that requires equal skill, effort, and responsibility and is performed under similar working conditions. An employer who is paying wages in violation of this section shall not reduce the wage rate of any other employee in order to comply with this subsection.
      1. An employer may pay different wage rates under this subsection when the differential wages are made pursuant to:
        1. A seniority system.
        2. A merit system.
        3. A system in which earnings are based on quantity or quality of production.
        4. A bona fide factor other than sex. An employer asserting that differential wages are paid pursuant to this subdivision shall demonstrate that the factor does not perpetuate a sex-based differential in compensation, is job-related with respect to the position in question, and is based upon a legitimate business consideration.
        1. No employer may do any of the following: (B) (i) No employer may do any of the following:
          1. Require, as a condition of employment, that an employee refrain from disclosing the amount of his or her wages or from inquiring about or discussing the wages of other employees.
          2. Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose the amount of his or her wages or to inquire about or discuss the wages of other employees.
        2. Unless otherwise required by law, an employer may prohibit a human resources manager from disclosing the wages of other employees.
    8. Retaliation prohibited. An employer, employment agency, or labor organization shall not discharge or in any other manner discriminate against any employee because the employee:
      1. has opposed any act or practice that is prohibited under this chapter;
      2. has lodged a complaint or has testified, assisted, or participated in any manner with the Attorney General, a State's Attorney, the Department of Labor, or the Human Rights Commission in an investigation of prohibited acts or practices;
      3. is known by the employer to be about to lodge a complaint, testify, assist, or participate in any manner in an investigation of prohibited acts or practices;
      4. has disclosed his or her wages or has inquired about or discussed the wages of other employees; or
      5. is believed by the employer to have acted as described in subdivisions (A) through (D) of this subdivision.
  2. The provisions of this section shall not be construed to limit the rights of employers to discharge employees for good cause shown.
  3. The provisions of this section prohibiting discrimination on the basis of age shall apply for the benefit of persons 18 years of age or older.
    1. An employee shall not have a cause of action in negligence for any injury occurring to the employee on the account of an employer complying with subdivisions (a)(5) and (6) of this section. (d) (1)  An employee shall not have a cause of action in negligence for any injury occurring to the employee on the account of an employer complying with subdivisions (a)(5) and (6) of this section.
    2. A person shall not have a cause of action in negligence for any injury occurring to the person on account of an employer complying with subdivisions (a)(5) and (6) of this section.
  4. The provisions of this section prohibiting discrimination on the basis of sexual orientation and gender identity shall not be construed to prohibit or prevent any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, that is operated, supervised, or controlled by or in connection with a religious organization, from giving preference to persons of the same religion or denomination or from taking any action with respect to matters of employment that is calculated by the organization to promote the religious principles for which it is established or maintained.
  5. [Repealed.]
  6. Notwithstanding any provision of this subchapter, an employer shall not be prohibited from establishing and enforcing reasonable workplace policies to address matters related to employees' gender identity, including permitting an employer to establish a reasonable dress code for the workplace.
  7. Nothing in this section shall require an employer to disclose the wages of an employee in response to an inquiry by another employee, unless the failure to do so would otherwise constitute unlawful employment discrimination. Unless otherwise required by law, nothing in this section shall require an employee to disclose his or her wages in response to an inquiry by another employee.

    Added 1963, No. 196 , § 1; amended 1971, No. 9 , eff. Feb. 25, 1971; 1975, No. 198 (Adj. Sess.), § 1; 1981, No. 65 , § 1; 1987, No. 176 (Adj. Sess.), §§ 1, 2; 1987, No. 176 (Adj. Sess.), §§ 1, 2; 1991, No. 135 (Adj. Sess.), § 15; 1999, No. 19 , § 4; 1999, No. 103 (Adj. Sess.), § 1; 2001, No. 81 (Adj. Sess.), § 1, eff. April 25, 2002; 2005, No. 10 , § 1; 2007, No. 41 , § 18; 2013, No. 31 , § 2; 2013, No. 35 , § 2; 2013, No. 96 (Adj. Sess.), § 129; 2017, No. 113 (Adj. Sess.), § 145; 2017, No. 184 (Adj. Sess.), § 1.

History

Revision note. At the end of subdivs. (d)(1) and (2), substituted "subdivisions (a)(6) and (7) of this section" for "section 495(a)(6) and (7)" to conform references to V.S.A. style.

In subsection (a), subdivs. (a)-(e) were changed to (1)-(5) to conform section to V.S.A. style.

Amendments--2017 (Adj. Sess.). Subsec. (a): Act No. 184 inserted "crime victim status," following "place of birth" throughout the subsec.

Subdiv. (d)(1): Act No. 113 substituted "subdivisions (a)(5) and (6)" for "subdivisions (a)(6) and (7)".

Subdiv. (d)(2): Act No. 113 deleted "the" preceding "account of" and substituted "subdivisions (a)(5) and (6)" for "subdivisions (a)(6) and (7)".

Amendments--2013 (Adj. Sess.). Subdivs. (a)(1), (a)(3), and (a)(4): Substituted "individual with a disability" for "disabled individual".

Amendments--2013. Subsec. (a): Act No. 31 rewrote subdivs. (5)-(8).

Subsec. (f): Repealed by Act No. 35.

Subsec. (h): Added by Act No. 31.

Amendments--2007. Subsec. (a): Inserted "gender identity" following "sexual orientation".

Subdivs. (a)(1)-(4): Inserted "gender identity" following "sexual orientation".

Subsec. (e): Inserted "and gender identity" following "sexual orientation".

Subsec. (f): Inserted "or gender identity" following "sexual orientation".

Subsec. (g): Added.

Amendments--2005. Subdiv. (a)(8): Rewrote the subdivision.

Amendments--2001 (Adj. Sess.). Added subdiv. (a)(8) and made a minor change in punctuation in (a)(7).

Amendments--1999 (Adj. Sess.). Substituted "against a qualified individual with a disability" for "against a qualified disabled individual" in subdivs. (1), (3), and (4) of subsec. (a).

Amendments--1999. Subsec. (a): Substituted "disabled" for "handicapped" in subdivs. (1), (3) and (4) and "disability" for "handicapping condition" in subdiv. (2).

Amendments--1991 (Adj. Sess.). Subsec. (a): Inserted "sexual orientation" following "sex" in the introductory paragraph and subdivs. (1)-(4), deleted "his" preceding "race" in subdiv. (1), and made a minor change in punctuation in subdivs. (5) and (6).

Subsec. (c): Substituted "section" for "act" preceding "prohibiting".

Subsec. (e): Added.

Subsec. (f): Added.

Amendments--1987 (Adj. Sess.). Subdiv. (a)(6): Added.

Subdiv. (a)(7): Added.

Subsec. (d): Added.

Amendments--1981. Section amended generally.

Amendments--1975 (Adj. Sess.). Introductory paragraph: Amended generally.

Subdiv. (1): Deleted "with respect to any matter directly or indirectly related to his employment, rates of pay, or labor organization membership opportunities" preceding "because of".

Subdiv. (2): Substituted "employees" for "employment" following "any person seeking".

Subdiv. (5): Added.

Amendments--1971. Introductory paragraph: Inserted "in which" preceding "persons of a particular race" and "sex" preceding "or ancestry".

Subdiv. (1): Inserted "rates of pay" following "related to his employment" and "sex" following "national origin".

Subdivs. (2)-(4): Inserted "sex" following "national origin".

Subdiv. (5): Deleted.

Legislative intent. 2007, No. 41 , Sec. 18a, provided: "(a) It is the intent of the General Assembly that 21 V.S.A. § 495(g) shall not be used as a pretext for an employer to enact workplace policies that deny an individual the protections afforded under this subchapter.

"(b) It is the intent of the General Assembly that this act shall not require the offer of or coverage for additional health benefits under any insurance policy or certificate, subscriber contract, or employee health benefit plan. This act shall not be interpreted to reduce any rights to health benefits that may be available under other law."

Cross References

Cross references. Discrimination against applicant for employment asserting workers' compensation claim, see § 710 of this title.

HIV testing generally, see 18 V.S.A. § 1127 et seq.

Regulation of pay-per-call services advertising employment opportunities or job placement services, see 9 V.S.A. § 2506.

Unfair labor practices, see § 1621 of this title.

ANNOTATIONS

Analysis

1. Applicability.

In a former employee's suit asserting overtime compensation claims under the Fair Labor Standards Act (FLSA), 29 U.S.C.S. §§ 201-219, the court had supplemental jurisdiction pursuant to 28 U.S.C.S. § 1367(a) over the employee's claims under Vermont's Fair Employment Practices Act, 21 V.S.A. §§ 495-496, and Vermont's Workers' Compensation Law, 21 V.S.A. §§ 643b, 710 because those claims, though based on disability status and retaliation, were not totally unrelated to the FLSA claims, and adjudication of these state law claims was apt to require many of the same witnesses, much of the same evidence, and determination of many of the same facts. Connolly v. Smugglers' Notch Mgmt. Co., - F. Supp. 2d - (D. Vt. Nov. 5, 2009).

Issues decided by arbitrator in employment discrimination action were based on provisions of collective bargaining agreement and were not the same as those which would be decided under Vermont Fair Employment Practices Act; collateral estoppel therefore did not apply to arbitrator's decision. Latouche v. North Country Union High School District, 131 F. Supp. 2d 568 (D. Vt. 2001).

At-will employees are not without remedies for wrongful termination as they may turn to Vermont's Fair Employment Practices Act, 21 V.S.A. § 495, as an employee handbook may unilaterally modify employment relationship, as promissory estoppel may modify employment contract otherwise terminable at-will, and as some courts recognize a public policy exception to at-will doctrine. Ross v. Times Mirror, Inc., 164 Vt. 13, 665 A.2d 580 (1995).

2. Public policy.

Complaint by employees that they were discharged from their employment solely on the basis of their age stated a cause of action under public policy exception to at will employment doctrine, where provisions of this section concerning age discrimination were not in effect at time of alleged wrongful discharge. Payne v. Rozendaal, 147 Vt. 488, 520 A.2d 586 (1986).

3. Construction.

Federal court interpretations of Title VII of the federal Civil Rights Act, on which this subchapter was patterned, are persuasive but not binding authority on the interpretation of this subchapter, as are decisions from courts of other states construing the employment discrimination laws of those states that were patterned in whole or in part on Title VII. Lavalley v. E.B. & A.C. Whiting Co., 166 Vt. 205, 692 A.2d 367 (1997).

An employer may be an "individual" under this section. McHugh v. University of Vermont, 758 F. Supp. 945 (D. Vt. 1991), aff'd, 966 F.2d 67 (2d Cir. 1992).

4. Employment status.

Active-duty members of the Department of the Army assigned to Reserve Officers' Training Corps (ROTC) Program at state university were employees of the federal government and not "employers" under this section. McHugh v. University of Vermont, 758 F. Supp. 945 (D. Vt. 1991), aff'd, 966 F.2d 67 (2d Cir. 1992).

5. Burden of proof.

College professor failed to show that she was terminated on the basis of her Japanese national origin in violation of the Vermont Fair Employment Practices Act because her prior work evaluations were not consistently positive, there was no evidence of national origin bias, or that prior negative performance evaluations were unfair, negative comments from people not meaningfully involved in the review process did not show bias, and there was no pattern of disparate treatment, particularly as less than two years after the professor's termination, a Japanese-American was promoted to program director. Hiramoto v. Goddard College Corp., 184 F. Supp. 3d 84 (D. Vt. 2016).

When viewed in its entirety, the trial court's decision in an action under the Vermont Fair Employment Practices Act revealed that the trial court applied the proper burden of proof. It explained that following the establishment of plaintiffs' prima facie case, the burden rested on the State as the employer to prove that the wage disparity was not sex-linked and that once this burden had been met, plaintiffs could offer evidence that the proffered justification was pretext, but it underscored that this did not shift the burden of proof. Vt. Human Rights Comm'n v. State, 201 Vt. 62, 136 A.3d 188 (2015).

The standards and burdens of proof to be applied under the Vermont Fair Employment Practices Act are identical to those applied under Title VII of the United States Civil Rights Act of 1964. Robertson v. Mylan Labs., Inc., 176 Vt. 356, 848 A.2d 310 (2004).

In the absence of direct evidence of unlawful discrimination, a three-step burden-shifting analysis of Fair Employment Practices Act claims is applied: this requires plaintiff to make an initial showing of circumstantial evidence creating a presumption of illegal discrimination by the defendant; the burden then shifts to defendant to articulate some legitimate, nondiscriminatory reason for the adverse employment action; and, if the employer meets this burden of production, the final stage of the analysis shifts the burden of production back to plaintiff to prove by a preponderance of the evidence that the legitimate reasons given by the employer are a pretext for discrimination. Boulton v. CLD Consulting Engineers, Inc., 175 Vt. 413, 834 A.2d 37 (2003).

Because trial court found that plaintiff was reliable, knowledgeable and met or exceeded expectations for his position, and employer did not contest that plaintiff was qualified for position, plaintiff satisfied light burden of proof applicable to a prima facie case of age discrimination. Carpenter v. Central Vermont Medical Center, 170 Vt. 565, 743 A.2d 592 (mem.) (1999).

Employee who was transferred to another position and then terminated, following affair with plant manager, failed to establish a prima facie case of employment discrimination or of retaliation, and also failed to rebut employer's legitimate nondiscriminatory reasons for its actions. Forant v. Cabot Creamery Coop., 74 F. Supp. 2d 415 (D. Vt. 1999).

To establish a prima facie case of gender discrimination, a female plaintiff must show that she was qualified for the position, that her employer discharged her, and that the employer sought or hired a male to replace her. Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235 (2d Cir. 1995).

When a plaintiff's evidentiary proffer meets the requirements for a prima facie case, the burden of production to offer a legitimate nondiscriminatory reason for the discharge falls on the employer, while the burden of persuasion on the whole case remains with the plaintiff. Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235 (2d Cir. 1995).

To prove retaliatory discrimination in violation of this section, plaintiff must initially prove a prima facie case of discrimination; then the burden shifts to the defendant to articulate some legitimate nondiscriminatory reason for the conduct; if defendant so articulates, plaintiff must prove that those reasons are a mere pretext. Sprague v. University of Vermont, 661 F. Supp. 1132 (D. Vt. 1987).

In case involving an allegation of retaliatory discharge, the plaintiff has the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination; if plaintiff succeeds in proving his or her prima facie case, the burden of production of evidence then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the alleged retaliatory conduct; if the defendant succeeds in carrying this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Cobb v. Dufresne-Henry, Inc., 603 F. Supp. 1048 (D. Vt. 1985).

In a case involving an alleged retaliatory discharge, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Cobb v. Dufresne-Henry, Inc., 603 F. Supp. 1048 (D. Vt. 1985).

In retaliatory discharge cases, a plaintiff must prove, through admissible evidence presented at trial, that (1) he or she was engaged in a protected activity; (2) he or she was discharged; and (3) there was a causal connection between the participation in the protected activity and the discharge. Cobb v. Dufresne-Henry, Inc., 603 F. Supp. 1048 (D. Vt. 1985).

In retaliatory discharge cases, if the defendant challenges causation, either by introducing evidence of no causal link, or of other cause, the burden is on the plaintiff to show that, but for the protected activity, no action would have taken place; the employee need not prove that his or her activity was the sole basis for the employer's action, but the employee must prove that but for the activity, he or she would not have been fired. Cobb v. Dufresne-Henry, Inc., 603 F. Supp. 1048 (D. Vt. 1985).

In an action under this section for discrimination in hiring on basis of sex, the critical questions are whether the plaintiff has established a prima facie case of discrimination and, if so, whether the employer's evidence is sufficient to establish some legitimate nondiscriminatory reason for refusal to hire. State v. Whitingham School Board, 138 Vt. 15, 410 A.2d 996 (1979).

In a sex discrimination in hiring action under this section, the plaintiff must establish that one discriminated against belonged to a protected minority, applied for and was qualified for a job opening, was rejected, and that the employer continued to seek applicants having qualifications like the rejected person, and after such prima facie case is established, the employer has the burden of showing its decision was based on a legitimate consideration not condemnable as discriminatory under the law, after which the plaintiff must be afforded an opportunity to show that the justification put forth by employer is merely a pretext. State v. Whitingham School Board, 138 Vt. 15, 410 A.2d 996 (1979).

6. Sex discrimination.

Under the language of the collective bargaining agreement, a male employee's movement to business manager was a promotion, not a new hire, so that the provision allowing the raising of incumbents' salaries did not apply, and the increases in his salary, including the one connected to his promotion, were for a bona fide reason other than sex, namely, the State's merit and seniority policies. Vt. Human Rights Comm'n v. State, 201 Vt. 62, 136 A.3d 188 (2015).

Plaintiffs' assertions showed that a hire-into-range policy was not followed exactly, but failed to show either that the policy was applied unreasonably or inconsistently with its terms or that any shortcomings resulted in a process based on a "bona fide factor other than sex." The stated purpose of the policy was to provide a mechanism to hire candidates when there was a shortage of applicants, when an applicant had special qualifications, or when an applicant possessed unique credentials exceeding other applicants, and the State relied on all of these reasons and provided a sufficient basis for each. Vt. Human Rights Comm'n v. State, 201 Vt. 62, 136 A.3d 188 (2015).

State showed that the difference in wages was due to a "bona fide factor other than sex" when it presented evidence to demonstrate that a male employee's higher starting salary was justified based on his relevant education and extensive related experience, as well as business exigencies existing at the time based on its need to timely and efficiently have a new correctional facility's food service functions operational. Vt. Human Rights Comm'n v. State, 201 Vt. 62, 136 A.3d 188 (2015).

There was no showing of perpetuation of a sex-based differential in compensation. There was no support in the statutory language for plaintiffs' contention that if a hire resulted in a male being paid more than a female, then a sex-based wage differential was perpetuated and the reason was not bona fide; furthermore, there was no evidence that a male employee's hire and the factors considered as part of the hire-in-range process; experience, education, and business needs, perpetuated wage differentials generally or that the hire perpetuated wage disparity insofar as his higher starting salary was not higher than any female incumbent with similar work history or education. Vt. Human Rights Comm'n v. State, 201 Vt. 62, 136 A.3d 188 (2015).

When an employer relies on a policy to explain its defense to an equal pay act violation, it must demonstrate that the policy was used reasonably; therefore, it is a question of law whether the facts indicate that the policy was implemented reasonably. Here, it was reasonable for the State under its hire-into-range policy to interpret three applicants as a shortage of qualified applicants for the position. Vt. Human Rights Comm'n v. State, 201 Vt. 62, 136 A.3d 188 (2015).

In a mixed-motive gender discrimination case brought by plaintiff, a discharged state trooper, under the Vermont Fair Employment Practices Act and Title VII of the Civil Rights Act of 1964, plaintiff failed to allege that she was prejudiced by the trial court's refusal to consider the allegations in her complaint to the Human Rights Commission because she had not sworn to the truth of its contents. Moreover, even if the complaint were considered, it was based largely on "information and belief," inadmissible hearsay, and conclusory allegations insufficient to provide a factual basis to evaluate the claim of improper motivation. Lamay v. State, 191 Vt. 635, 49 A.3d 559 (mem.) (2012).

Plaintiff, a discharged former state trooper, had not established mixed-motive gender discrimination under the Vermont Fair Employment Practices Act and Title VII. The remarks attributed to plaintiff's supervisor were essentially descriptive of actual problems plaintiff had with childcare and did not convey invidious gender stereotyping; plaintiff had not shown that the complaining prosecutor was either aware of a male state trooper's alleged misstatements or referred the matter to plaintiff's supervisor; plaintiff had not shown that she and a male trooper who was not compelled to live near assigned barracks were similarly situated; there was no clear proof that another trooper was neither investigated nor disciplined as plaintiff claimed; and as for plaintiff's claim of disparate treatment in being disciplined for asking another officer to dispose of marijuana, the issue was not whether other troopers failed to follow the rule in question, but how they were treated where, as here, the violation was reported by a fellow trooper. Lamay v. State, 191 Vt. 635, 49 A.3d 559 (mem.) (2012).

Where plaintiff was a qualified female engineer who lost her managerial position and was replaced by a male manager, she made a prima facie showing of gender discrimination and defendant company then had the burden of production to demonstrate that it had legitimate, nondiscriminatory reasons for removing plaintiff from her position as branch manager. Boulton v. CLD Consulting Engineers, Inc., 175 Vt. 413, 834 A.2d 37 (2003).

To establish circumstances giving rise to an inference of gender discrimination, plaintiff may show that she was treated differently from a similarly situated male employee. Boulton v. CLD Consulting Engineers, Inc., 175 Vt. 413, 834 A.2d 37 (2003).

Where plaintiff failed to demonstrate that she was treated differently from the male executives with whom she compared herself, the trial court did not err in rejecting her argument that she had alleged facts that could support her allegation of disparate treatment on account of her gender. Boulton v. CLD Consulting Engineers, Inc., 175 Vt. 413, 834 A.2d 37 (2003).

Pregnancy discrimination can be sex discrimination under the Vermont Fair Employment Practices Act. Pregnancy is a condition unique to women, and the ability to become pregnant is a primary characteristic of the female sex. Thus any classification which relies on pregnancy as the determinative criterion is a distinction based on sex. Lavalley v. E.B. & A.C. Whiting Co., 166 Vt. 205, 692 A.2d 367 (1997).

Employer's policy - under which workers with nonwork-related long-term disabilities that rendered them unable to substantially perform their responsibilities were placed on disability leave at fifty percent of salary, as opposed to workers with work-related disabilities, who were encouraged to accept accommodations, including alternative work, and who received full pay - did not specifically condition any employment or benefit rule on pregnancy and was facially neutral and affected pregnant women because their temporary disability, and those of others both male and female, was not work related. This policy distinction is fundamentally rooted in the workers' compensation laws. Lavalley v. E.B. & A.C. Whiting Co., 166 Vt. 205, 692 A.2d 367 (1997).

In sex discrimination in hiring action, where lower court treated as irrelevant the employer's comparison of complainant and person hired with respect to background, qualifications and experience and employer's claim it hired the person with the superior qualifications, the court erroneously ignored the most basic legitimate nondiscriminatory consideration for a hiring decision and should have focused on whether that consideration was a mere pretext for impermissible discrimination, and cause, which resulted below in order that complainant be hired, would be remanded for new hearing and evaluation of the evidence. State v. Whitingham School Board, 138 Vt. 15, 410 A.2d 996 (1979).

7. Evidence.

In an appeal of a district court's entry of summary judgment in favor of the employer in a national-origin discrimination claim, the employer proffered a legitimate, nondiscriminatory reason for not reappointing the plaintiff and she could not carry her burden of proving that reason to be a pretext for discrimination. Hiramoto v. Goddard Coll. Corp., 684 Fed. Appx. 48 (2d Cir. 2017).

Evidence that employees with male managers were treated differently than those in exclusively female departments with regard to termination was sufficient to create an inference of sex discrimination. Gadbois v. Rock-Tenn Co., Mill Div., Inc., 984 F. Supp. 811 (D. Vt. 1997).

Evidence that, upon termination, younger employees were offered comparable jobs within the company while plaintiff was not contacted until six months after her discharge and was offered alternative employment at a $15,000 pay decrease was sufficient to give rise to an inference of age discrimination. Gadbois v. Rock-Tenn Co., Mill Div., Inc., 984 F. Supp. 811 (D. Vt. 1997).

In a sexual harassment suit, the employer waived the attorney-client privilege as to notes and memoranda prepared as part of its investigation of plaintiff's allegations by defending itself upon the adequacy of the investigation. Peterson v. Wallace Computer Servs., Inc., 984 F. Supp. 821 (D. Vt. 1997).

Female plaintiff proffered evidence sufficient to meet burden of establishing prima facie case where she provided ample evidence that she performed her work in an exemplary fashion, was fired, and was replaced by a male. Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235 (2d Cir. 1995).

Although employer argued that former employee's sworn statement in Social Security proceeding that she was physically incapable of performing the job of general helper was dispositive on the issue of whether employee was qualified under 21 V.S.A. § 495(a)(1), employee's statements could not be dispositive on the issue of whether she was a qualified handicapped individual because they were made without regard for the essential functions of the job and whether reasonable accommodations would enable her to perform the job; however, they were probative of her job-related capabilities and the severity of her handicap. State v. G.S. Blodgett Co., 163 Vt. 175, 656 A.2d 984 (1995).

Where plaintiff presented no evidence that he engaged in any activity protected under 21 V.S.A. § 495 in relation to a claim of retaliatory discharge, plaintiff could not rely on statutory remedy for his termination. Ross v. Times Mirror, Inc., 164 Vt. 13, 665 A.2d 580 (1995).

In sex discrimination in hiring action, complainant's statistical evaluation of ratio of male to female teachers statewide in elementary and secondary levels as against ratio in school district which did not hire her was of little probative value where there were only seven elementary and twenty-one secondary level teachers in the district; and the evidence was of little, if any, value where it could not be determined which teachers were hired after this subchapter became law. State v. Whitingham School Board, 138 Vt. 15, 410 A.2d 996 (1979).

8. Retaliatory discharge.

In a suit alleging that in terminating her employment, a college unlawfully retaliated against her and discriminated against her on the basis of her Japanese national origin in violation of the Vermont Fair Employment Practices Act, the professor abandoned her retaliation claim by not raising it in response to the college's motion, and in any event, the claim failed because there was no evidence that the professor engaged in any protected activity or that the college was aware of any such activity. Hiramoto v. Goddard College Corp., 184 F. Supp. 3d 84 (D. Vt. 2016).

To establish a prima facie case of retaliatory discrimination under the Vermont Fair Employment Practices Act plaintiff must show that (1) she engaged in a protected activity; (2) her employer was aware of that activity; (3) she suffered adverse employment decisions; and (4) there was a causal connection between the protected activity and the adverse employment action. Robertson v. Mylan Labs., Inc., 176 Vt. 356, 848 A.2d 310 (2004).

To establish a prima facie case for retaliatory discrimination, plaintiff must show that: (1) he was engaged in a protected activity; (2) his employer was aware of that activity; (3) he suffered adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. Gallipo v. City of Rutland, 178 Vt. 244, 882 A.2d 1177 (July 29, 2005).

In a discriminatory retaliation action, the trial court's consideration of plaintiff's claims and evidence was sufficient to support its conclusion that the incidents she complained of were not sufficiently severe to constitute an adverse employment action. Beckmann v. Edson Hill Manor, Inc., 171 Vt. 607, 764 A.2d 1220 (mem.) (2000).

There was genuine issue of material fact concerning firefighter's claim for retaliatory discharge where firefighter commenced his lawsuit under Vermont's Fair Employment Practices Act (VFEPA) on January 22, 1988, and was first assigned to detail on January 29, 1988, reprimand letters came in April, May and September of 1988, on detail, firefighter performed menial chores, such as trash-hauling and taking coffee orders, that he had not performed in ten or more years, and reprimand letters issued to him after his VFEPA complaint and lawsuit were the first he had received in twenty-six years as a firefighter. Gallipo v. City of Rutland, 163 Vt. 83, 656 A.2d 635 (1994).

If a court concludes that plaintiff is not a qualified handicapped individual, there is no actionable claim for discrimination under 21 V.S.A. § 495(a)(1). State v. G.S. Blodgett Co., 163 Vt. 175, 656 A.2d 984 (1995).

Although plaintiff's claim against school board for age discrimination and the claims against the other defendants were different, they related to the same decision of school board not to hire plaintiff, and trial court could have joined school board since these multiple wrongs produced a common injury. Breslauer v. Fayston School District, 163 Vt. 416, 659 A.2d 1129 (1995).

9. Age discrimination .

Trial court in age discrimination case erred in substituting its judgment for that of employer, where court opined that plaintiff had become "stuck in his ways," and was "a very concrete thinker"; employer had offered neither of these reasons, and therefore trial court's reaching out to find reasons it would not have promoted plaintiff was inappropriate. Carpenter v. Central Vermont Medical Center, 170 Vt. 565, 743 A.2d 592 (mem.) (1999).

To establish a prima facie case of discrimination on the basis of age, plaintiff must show that (1) he was within the protected age group, (2) he was qualified for the position, (3) he was discharged, and (4) the discharge occurred under circumstances giving rise to an inference of age discrimination. Ross v. Times Mirror, Inc., 164 Vt. 13, 665 A.2d 580 (1995).

Plaintiff failed to present sufficient evidence to reasonably indicate that his termination was motivated by his age where his only evidence was a memorandum that simply supported defendant's proffered reason for plaintiff's termination, his uncooperative attitude; defendant's decision to assign the only other person, even though much younger, in magazine's two-person office to cover a portion of plaintiff's territory three months after plaintiff's termination could be viewed as a reasonable stop-gap, rather than prima facie evidence of age discrimination. Ross v. Times Mirror, Inc., 164 Vt. 13, 665 A.2d 580 (1995).

10. Disability .

District court erred in holding that administering injections was an essential function of a pharmacist manager's job where the employer had issued a letter stating that administering immunization was not an essential function of the job, the manager specifically alleged that his job description was not altered after receiving the letter, and the only way to conclude as a matter of law that administering immunizations was an essential function of the manager's job was to both discredit the manager's well-pleaded allegation and discount the employer's own statement contained in the letter. Noel v. Wal-Mart Stores, E. LP, - F.3d - (2d Cir. Mar. 11, 2019).

While an employee did not prove her "qualified disability" in her amended complaint, she was not required to at the pleading stage; instead, she set out a plain, generalized statement that she had a disability, requested accommodation from her employer, and was fired as a result of the disability. Taking these allegations and all reasonable inferences therefrom as true, the employee adequately pleaded a Vermont Fair Employment Practices Act claim. Colby v. Umbrella, Inc., 184 Vt. 1, 955 A.2d 1082 (Mar. 7, 2008).

Plaintiff's condition must generally foreclose the type of employment at issue if he is to show that his ability to work is substantially limited. Lowell v. International Business Machines Corp., 955 F. Supp. 300 (D. Vt. 1997).

11. Employee misconduct.

Adverse employment actions taken for misconduct are not discriminatory, even though the employee was an alcoholic and the misconduct was related to the misuse of alcohol. Kennedy v. Department of Public Safety, 168 Vt. 601, 719 A.2d 405 (mem.) (1998).

12. Harassment .

An adverse employment action for retaliation is generally an act or harassment that results in an adverse effect on the terms, conditions, or benefits of employment. Such actions may include refusal to hire or rehire, a delay in reinstatement, a disadvantageous transfer or assignment, a demotion, refusal to promote, refusal to transfer or to give a deserved pay raise or bonus, a suspension, discharge, or constructive discharge. Gallipo v. City of Rutland, 178 Vt. 244, 882 A.2d 1177 (July 29, 2005).

The view that unchecked retaliatory co-worker harassment, if sufficiently severe, may constitute adverse employment action has never been explicitly adopted in Vermont, but, if applicable, it has been noted that it would require more than derogatory comments by co-workers. Gallipo v. City of Rutland, 178 Vt. 244, 882 A.2d 1177 (July 29, 2005).

13. Pleading.

In a former employee's suit under the Vermont Fair Employment Practices Act, 21 V.S.A. § 495(a)(5), the former employer's motion to dismiss for failure to state a claim was denied as moot because the former employee's more definite statement consolidated two counts and he no longer alleged retaliation based upon the disclosure of his disability, or his request for reasonable accommodation. Prince v. Entergy Nuclear Operations, Inc., - F. Supp. 2d - (D. Vt. Aug. 3, 2011).

In a former employee's suit under the Vermont Fair Employment Practices Act (FEPA), 21 V.S.A. § 495(a)(5), the former employer's motion to dismiss for failure to state a claim was denied because the former employee sufficiently alleged that he complained of discriminatory conduct based upon his disability and age, two forms of discrimination expressly prohibited by FEPA, which were allegations of protected activities of which the former employer was aware, and the former employee sufficiently alleged the third element of a retaliation claim by alleging that he suffered adverse employment actions as a result of his complaints since he asserted that the former employer denied him adequate time to complete either of his Performance Improvement Plans, summarily revoked his security clearance, subjected him to needless and demeaning psychological testing, and ultimately terminated his employment. Prince v. Entergy Nuclear Operations, Inc., - F. Supp. 2d - (D. Vt. Aug. 3, 2011).

Where an employee alleged that an employer filed a lawsuit against the employee in retaliation for the employee's seeking and obtaining other employment while employed by the employer, the employee failed to plead a necessary element of a retaliation claim under 21 V.S.A. § 495 because the employee did not allege that he belonged to any class protected by the Vermont Fair Employment Practices Act (VFEPA) or that he participated in any activity protected by the VFEPA; seeking and obtaining employment was not a protected activity. Vermont Hard Cider Co., LLC v. Ciolek, - F. Supp. 2d - (D. Vt. Mar. 7, 2012).

To conclude that an employee's amendments to her Vermont Fair Employment Practices Act (FEPA) claim were futile, the trial court had to have dismissed her factual allegations that the Child Development Division acted as an employer with respect to childcare resource center staff by participating in hiring and termination decisions and asserting managerial control over the center; while the employee did not provide evidence that the State remunerated her, at the pleading stage, the employee was merely required to give notice to defendants of the claims against them. As such, the employee's amendments with respect to her FEPA claim could survive a motion to dismiss and were not, therefore, futile. Colby v. Umbrella, Inc., 184 Vt. 1, 955 A.2d 1082 (Mar. 7, 2008).

14. Damages.

Employer failed in its challenge to the amount of damages in an age discrimination case brought by a job applicant. It would have been entirely speculative for the jury to have made an offset to reflect additional income evidence; the evidence on mitigation was sparse and inconclusive; the front pay period was not too speculative in that an expert witness explained how he derived his prediction of the applicant's employment duration in relation to the population for his age group and education; and there was no evidence that the verdict included attorney's fees. Spooner v. Town of Topsham, 186 Vt. 527, 973 A.2d 1202 (mem.) (2009).

Cited. State v. Whitingham School Board, 140 Vt. 405, 438 A.2d 394 (1981); Galvin v. Vermont, 598 F. Supp. 144 (D. Vt. 1984); Packard v. Gordon, 148 Vt. 579, 537 A.2d 140 (1987); In re Gorruso, 150 Vt. 139, 549 A.2d 631 (1988); Wood v. Vermont Insurance Management, Inc., 749 F. Supp. 558 (D. Vt. 1990); Morse v. University of Vermont, 776 F. Supp. 844 (D. Vt. 1991), affirmed in part and reversed in part, 973 F.2d 122 (2d Cir. 1992). Foote v. Simmonds Precision Products Co., 158 Vt. 566, 613 A.2d 1277 (1992); Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 624 A.2d 1122 (1992); Choudhary v. Vermont Dep't of Pub. Serv.,, 817 F. Supp. 428 (D. Vt. 1993), aff'd, 9 F.3d 1538 (2d Cir.), cert. denied, 511 U.S. 1133, 114 S. Ct. 2148, 128 L. Ed. 2d 875 (1994); Mancini v. General Electric Co.,, 820 F. Supp. 141 (D. Vt. 1993); Schnabel v. Nordic Toyota, Inc., 168 Vt. 354, 721 A.2d 114 (1998); Green v. Vermont Country, 191 F. Supp. 2d 476 (D. Vt. 2002).

Law review commentaries

State v. Whitingham School Board: A Unique Employment Discrimination Loophole For Vermont Employers, see 6 Vt. L. Rev. 119 (1982).

For article, "The Meaning of 'Sex': Homosexual and Bisexual Harassment Under Title VII", see 20 Vt. L. Rev. 55 (1995).

§ 495a. Persons entering into contracts with this State.

The State of Vermont and all of its contracting agencies shall include in all contracts hereafter negotiated a provision obligating the contractor to comply with this subchapter in connection with any work to be performed in this State and requiring the contractor to include a similar provision in all subcontracts for work to be performed in this State.

1963, No. 196 , § 2.

§ 495b. Penalties and enforcement.

The Attorney General or a State's Attorney may enforce the provisions of this subchapter by restraining prohibited acts, seeking civil penalties, obtaining assurances of discontinuance, and conducting civil investigations in accordance with the procedures established in 9 V.S.A. §§ 2458 -2461 as though an unlawful employment practice were an unfair act in commerce. Any employer, employment agency, or labor organization complained against shall have the same rights and remedies as specified therein. The Superior Courts are authorized to impose the same civil penalties and investigation costs and to order other relief to the State of Vermont or an aggrieved employee for violations of this subchapter as they are authorized to impose or order under the provisions of 9 V.S.A. §§ 2458 and 2461 in an unfair act in commerce. In addition, the Superior Courts may order restitution of wages or other benefits on behalf of an employee and may order reinstatement and other appropriate relief on behalf of an employee.

(2) Any charge or formal complaint filed by the Attorney General or a State's Attorney against a person for unlawful discrimination or sexual harassment in violation of the provisions of this chapter shall include a statement setting forth the prohibition against retaliation pursuant to subdivision 495(a)(8) of this title.

(b) Any person aggrieved by a violation of the provisions of this subchapter may bring an action in Superior Court seeking compensatory and punitive damages or equitable relief, including restraint of prohibited acts, restitution of wages or other benefits, reinstatement, costs, reasonable attorney's fees, and other appropriate relief.

(c) Any employer who violates the provisions of subdivision 495(a)(7) of this title shall be liable to any affected employee in the amount of the underpaid wages and an equal amount as liquidated damages, in addition to any other remedies available under this section.

Added 1963, No. 196 , § 3; amended 1975, No. 198 (Adj. Sess.), § 2; 1981, No. 65 , § 2; 1999, No. 19 , § 5; 2001, No. 81 (Adj. Sess.), § 2, eff. April 25, 2002; 2015, No. 97 (Adj. Sess.), § 55; 2017, No. 183 (Adj. Sess.), § 2.

History

Revision note. In subsec. (a), substituted "9 V.S.A. §§ 2458-2461" for "sections 2458-2461 of Title 9" and "9 V.S.A. §§ 2458 and 2461"for "sections 2458 and 2461 of Title 9" to conform reference to V.S.A. style.

Amendments--2017 (Adj. Sess.). Subsec. (a): Redesignated subsec. (a) as subdiv. (a)(1) and added (a)(2).

Amendments--2015 (Adj. Sess.). Subsec. (c): Substituted "subdivision 495(a)(7)" for "subdivision 495(a)(8)".

Amendments--2001 (Adj. Sess.) Subsec. (c): Added.

Amendments--1999. Subsec. (b): Inserted "compensatory and punitive" following "superior court seeking".

Amendments--1981. Designated existing provisions of section as subsec. (a) and added subsec. (b).

Amendments--1975 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Orders for relief on behalf of a class of employees, see § 495e of this title.

ANNOTATIONS

Analysis

1. Attorney's fees .

Since sections 2458-2461 of Title 9, incorporated by reference in subsection (a) of this section, expressly authorize attorney's fees for plaintiffs and the state, but do not mention an award for defendants, the omission supports the inference that the legislature intended to exclude employers from attorney's fees under this section. State v. Whitingham School Board, 140 Vt. 405, 438 A.2d 394 (1981).

*2. Purpose.

Limitation of attorney's fees to plaintiffs and the state furthers the policy of this subchapter, which is to prevent or correct the use of gender in employment decisions where it is not a bona fide occupational qualification. State v. Whitingham School Board, 140 Vt. 405, 438 A.2d 394 (1981).

Limitation of attorney's fees to plaintiffs and defendants encourages suits to vindicate civil rights, and penalizes those who violate the law. State v. Whitingham School Board, 140 Vt. 405, 438 A.2d 394 (1981).

*3. Recovery by defendant.

Neither section 2458 nor section 2461 of Title 9, the provisions of the consumer fraud act relating to recovery of litigation expenses and attorney fees by the state and by plaintiffs which are incorporated by reference in subsection (a) of this section, authorize attorney's fees to a prevailing defendant. State v. Whitingham School Board, 140 Vt. 405, 438 A.2d 394 (1981).

Language in subsection (a) of this section that any employer, employment agency or labor organization complained against shall have the same rights and remedies as specified in sections 2459-2461 of Title 9 cannot be interpreted as granting employers the identical opportunity for attorney's fees afforded plaintiffs and the state by sections 2458 and 2461 of Title 9, since such construction runs counter to the plain meaning of those sections, which expressly authorize attorney's fees for plaintiffs and the state, but do not mention an award for defendants. State v. Whitingham School Board, 140 Vt. 405, 438 A.2d 394 (1981).

*4. Recovery by State.

State was not entitled as a matter of right to recover attorney fees and costs in successful suit under this subchapter. State v. Champlain Cable Corp., 147 Vt. 436, 520 A.2d 596 (1986).

5. Investigation costs.

Under the plain language of subsection (a) of this section, the courts are authorized in their discretion to award investigation costs to the state, but they are not required to do so. State v. Champlain Cable Corp., 147 Vt. 436, 520 A.2d 596 (1986).

6. Relief.

A plaintiff may seek both legal and equitable relief when making a claim under the Vermont Fair Employment Practices Act. Gadbois v. Rock-Tenn Co., Mill Div., Inc., 984 F. Supp. 811 (D. Vt. 1997).

Complete denial of all fees for a second attorney was an abuse of discretion because the record did not support a finding that all fees for the second attorney were unreasonable. Apart from implying that plaintiff's fees were excessive because of the use of multiple attorneys, the trial court provided no findings or analysis as to how the second attorney's services were duplicative, nor did the trial court explain why it did not award fees for work that the second attorney did that did not involve familiarizing himself with the facts and law that the first attorney already knew. Spooner v. Town of Topsham, 188 Vt. 293, 9 A.3d 672 (2010).

Consideration that a reasonable client would wish to pay the lowest possible hourly rate to litigate a case effectively is just one factor among others that courts should bear in mind when determining reasonableness. Furthermore, in denying a request for fees for an interlocutory appeal under the Fair Employment Practices Act, the trial court offered no explanation as to why a reasonable client would not be willing to pay for the interlocutory appeal, and the court did not find any evidence in the record to support such a conclusion. Spooner v. Town of Topsham, 188 Vt. 293, 9 A.3d 672 (2010).

7. Reasonable fees.

In denying plaintiff fees and costs connected with an interlocutory appeal under the Fair Employment Practices Act, the trial court's conclusion that the need for the interlocutory appeal process was "debatable" was not a finding of unreasonableness. In order to deny attorney's fees for the interlocutory appeal, the trial court was required to find that pursuit of the interlocutory appeal was unreasonable, not that it was "debatable." Spooner v. Town of Topsham, 188 Vt. 293, 9 A.3d 672 (2010).

8. Third party instigating additional costs.

Nothing in the Fair Employment Practices Act that provides an exception to the fee-shifting provision based on whether a third party instigated additional litigation costs. In a suit by a job applicant against a town, the applicant's interlocutory appeal was a necessary portion of the trial in which the town was found to have engaged in discriminatory hiring practices; thus, the fact that it was a witness, and not the town itself, who filed a motion to quash did not mean that the town should not pay the fees and costs for the interlocutory appeal. Spooner v. Town of Topsham, 188 Vt. 293, 9 A.3d 672 (2010).

In a case where plaintiff sought fees and costs connected with filing an interlocutory appeal under the Fair Employment Practices Act to compel the testimony of a witness, there was no basis in the record for finding that plaintiff's strategy was unreasonable. Rather, in ruling that the witness's subpoena could not be quashed, the appellate court necessarily held that his testimony was important to the case; thus, it was an abuse of discretion for the trial court to conclude that the interlocutory appeal was unnecessary and produced evidence of "debatable" import. Spooner v. Town of Topsham, 188 Vt. 293, 9 A.3d 672 (2010).

Cited. State v. Whitingham School Board, 138 Vt. 15, 410 A.2d 996 (1979); Galvin v. Vermont, 598 F. Supp. 144 (D. Vt. 1984); Cobb v. Dufresne-Henry, Inc., 603 F. Supp. 1048 (D. Vt. 1985); O'Brien v. Island Corp., 157 Vt. 135, 596 A.2d 1295 (1991); Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 624 A.2d 1122 (1992); Mancini v. General Electric Co., 820 F. Supp. 141 (D. Vt. 1993).

§ 495c. Application.

This subchapter shall not be construed as limiting the rights of employers to hire and fire and of labor organizations to determine the membership as long as such rights are not exercised in violation of this subchapter.

1963, No. 196 , § 4.

§ 495d. Definitions.

As used in this subchapter:

  1. "Employer" means any individual, organization, or governmental body including any partnership, association, trustee, estate, corporation, joint stock company, insurance company, or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee, or successor thereof, and any common carrier by mail, motor, water, air, or express company doing business in or operating within this State, and any agent of such employer, that has one or more individuals performing services for it within this State.
  2. "Employee" means every person who may be permitted, required, or directed by any employer, in consideration of direct or indirect gain or profit, to perform services.
  3. "Employment agency" means every person, corporation, association, or governmental body representative thereof engaged in the business of advertising for advising, classifying, training, or referral of persons for employment within this State, or that at the direction of any employer advertises, locates, advises, classifies, trains, refers, or selects persons to engage in any employment.
  4. "Labor organization" means any organization or association that represents not less than five employees and that exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, promotions, or other terms and conditions of employment.
  5. "Individual with a disability" means any natural person who:
    1. has a physical or mental impairment that substantially limits one or more major life activities;
    2. has a history or record of such an impairment; or
    3. is regarded as having such an impairment.
  6. "Qualified individual with a disability" means:
    1. An individual with a disability who is capable of performing the essential functions of the job or jobs for which the individual is being considered with reasonable accommodation to the disability.
    2. Does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others.
  7. "Physical or mental impairment" means:
    1. any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; or endocrine;
    2. any mental or psychological disorder, such as developmental disability, organic brain syndrome, emotional or mental condition or psychiatric disability, and specific learning disabilities;
    3. the term "physical or mental impairment" includes diseases and conditions such as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, intellectual disability, emotional illness, and drug addiction and alcoholism.
  8. "Substantially limits" means the degree that the impairment affects an individual's employability. An individual with a disability who is likely to experience difficulty in securing, retaining, or advancing in employment would be considered substantially limited.
  9. "Major life activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, and receiving education or vocational training.
  10. "Has a history or record of such an impairment" means that the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more life activity.
  11. "Is regarded as having such an impairment" means that the individual:
    1. has a physical or mental impairment that does not substantially limit major life activities but that is treated by an employer as constituting such a limitation;
    2. has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
    3. has none of the impairments defined in subdivision (7)(A) of this section but is treated by an employer as having such an impairment.
    1. "Reasonable accommodation" means the changes and modifications that can be made in the structure of a job or in the manner in which a job is performed unless it would impose an undue hardship on the employer. (12) (A) "Reasonable accommodation" means the changes and modifications that can be made in the structure of a job or in the manner in which a job is performed unless it would impose an undue hardship on the employer.
    2. "Reasonable accommodation" may include:

      making the facilities used by the employees, including common areas used by all employees such as hallways, restrooms, cafeterias, and lounges, readily accessible to and usable by individuals with disabilities; and

      job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, and other similar actions.

    3. Factors to be considered in determining whether an undue hardship is imposed by the requirement that reasonable accommodation be made for an individual with a disability include:
      1. the overall size of the employer's operation with respect to the number of employees, number and type of facilities, and size of budget; and
      2. the cost for the accommodation needed.
  12. "Sexual harassment" is a form of sex discrimination and means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
    1. submission to that conduct is made either explicitly or implicitly a term or condition of employment;
    2. submission to or rejection of such conduct by an individual is used as a component of the basis for employment decisions affecting that individual; or
    3. the conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment.
  13. "Pregnancy-related condition" means a limitation of an employee's ability to perform the functions of a job caused by pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.
  14. "Crime victim" means any of the following:
    1. a person who has obtained a relief from abuse order issued under 15 V.S.A. § 1103 ;
    2. a person who has obtained an order against stalking or sexual assault issued under 12 V.S.A. chapter 178;
    3. a person who has obtained an order against abuse of a vulnerable adult issued under 33 V.S.A. chapter 69; or
      1. a victim as defined in 13 V.S.A. § 5301 , provided that the victim is identified as a crime victim in an affidavit filed by a law enforcement official with a prosecuting attorney of competent state or federal jurisdiction; and (D) (i) a victim as defined in 13 V.S.A. § 5301 , provided that the victim is identified as a crime victim in an affidavit filed by a law enforcement official with a prosecuting attorney of competent state or federal jurisdiction; and
      2. shall include the victim's child, foster child, parent, spouse, stepchild or ward of the victim who lives with the victim, or a parent of the victim's spouse, provided that the individual is not identified in the affidavit as the defendant.

        Added 1975, No. 198 (Adj. Sess.), § 3; amended 1981, No. 65 , § 3; 1993, No. 39 , §§ 2, 3, eff. Oct. 1, 1993; 1999, No. 103 (Adj. Sess.), § 2; 2013, No. 96 (Adj. Sess.), § 130; 2017, No. 21 , § 1, eff. Jan. 1, 2018; 2017, No. 113 (Adj. Sess.), § 146; 2017, No. 184 (Adj. Sess.), § 2.

History

2016. In subdiv. (7)(C), substituted "intellectual disability" for "mental retardation" in accordance with 2013, No. 96 (Adj. Sess.), § 222.

2003. In subdiv. (6), inserted a colon following "'Qualified individual with a disability' means" and added the subdivision (A) and (B) designations.

Revision note - In subdiv. (11)(C), substituted "subdivision (7)(A) of this section" for "subsection (7)(A) of this section" to conform reference to V.S.A. style.

Amendments--2017 (Adj. Sess.) Subdiv. (12): Amended generally by Act 113.

Subdiv. (15): Added by Act No. 184.

Amendments--2017. Subdiv. (14): Added.

Amendments--2013 (Adj. Sess.). Undesignated paragraph: Substituted "As used in" for "For the purposes of".

Subdiv. (7)(B): Substituted "developmental disability" for "mental retardation" following "such as" and "mental condition or psychiatric disability" for "mental illness" following "emotional or".

Subdiv. (7)(C): Deleted "but is not limited to such" following "includes" and inserted "such" following "conditions".

Amendments--1999 (Adj. Sess.). Subdiv. (5): Substituted "Individual with a disability" for "Handicapped individual" and inserted "natural" preceding "person" in the introductory paragraph.

Subdiv. (6): Substituted "Qualified individual with a disability" for "Qualified handicapped individual", "with a disability who" for "with a handicap who", "which the individual is" for "which he is", and "to the disability" for "to his handicap" in the first paragraph; and substituted "qualified individual with a disability does" for "qualified handicapped individual does" in the second paragraph.

Subdiv. (8): Substituted "An individual with a disability who" for "A handicapped individual who" in the second sentence.

Subdiv. (12): Substituted "usable by individuals with disabilities, and" for "usable by handicapped persons, and" in subdiv. (A); and substituted "made for an individual with a disability include" for "made to an individual's handicapped condition include but are not limited to" in the introductory paragraph of subdiv. (C).

Amendments--1993 Subdiv. (1): Inserted "and any agent of such employer" preceding "which".

Subdiv. (13): Added.

Amendments--1981. Subdivs. (5)-(12): Added.

Cross References

Cross references. Sexual harassment, see § 495h of this title.

ANNOTATIONS

Analysis

1. Construction.

Issues decided by arbitrator in employment discrimination action were based on provisions of collective bargaining agreement and were not the same as those which would be decided under Vermont Fair Employment Practices Act: collateral estoppel therefore did not apply to arbitrator's decision. Latouche v. North Country Union High School District, 131 F. Supp. 2d 568 (D. Vt. 2001).

Plaintiff's emotional condition was not a handicap which could reasonably be accommodated within meaning of this subchapter, and employer was entitled to summary judgment on discrimination claim; ability to follow orders is an essential function of any job, uncontested facts indicated that plaintiff was insubordinate on several occasions, and employer was not obligated to transfer plaintiff to another work area to avoid contact with supervisor. Mancini v. General Electric Co.,, 820 F. Supp. 141 (D. Vt. 1993).

Although plaintiff's lack of upper teeth did not substantially limit her in any major life activity, she was nevertheless a handicapped individual under this subchapter where her employer decided that the visible physical impairment rendered her unfit to fill a position in which she had some contact with employer's guests. Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 624 A.2d 1122 (1992).

2. Applicability.

An employee does not lose her rights under this subchapter because she is covered under a collective bargaining agreement. Potvin v. Champlain Cable Corp., 165 Vt. 504, 687 A.2d 95 (1996).

3. Impairment.

Plaintiff's claimed impairment, ulcerative colitis, which had lasted for at least five months and was the result of a long-term illness that required three separate surgeries, could not be found, as a matter of law, too fleeting to be covered by this subchapter. Potvin v. Champlain Cable Corp., 165 Vt. 504, 687 A.2d 95 (1996).

Lack of upper teeth is a physical impairment within the meaning of this subchapter because it is a cosmetic disfigurement and an anatomical loss affecting the musculoskeletal and digestive systems. Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 624 A.2d 1122 (1992).

When an employer makes an employment decision based on its belief that an employee with a visible physical impairment is not fit to work in a position involving any customer contact, then the employer has treated the impairment as substantially limiting the employee's ability to work; in such circumstances, the employee is a handicapped individual under this subchapter. Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 624 A.2d 1122 (1992).

4. Qualified handicapped individual.

Relevant time for assessing whether an employee is capable of performing essential functions of her job is when accommodation is requested. Decker v. Vermont Educational Television, Inc., 13 F. Supp. 2d 569 (D. Vt. 1998).

In any handicapped-discrimination claim brought under the Fair Employment Practices Act, the first issue is whether plaintiff is a handicapped individual as defined by subdivision (5) of this section. Potvin v. Champlain Cable Corp., 165 Vt. 504, 687 A.2d 95 (1996).

To make a successful discrimination claim, plaintiff had to show not only that she was a handicapped individual, but that she was a "qualified handicapped individual" entitled to the protection of this subchapter; a "qualified handicapped individual" is a person who can perform the "essential functions of the job...with reasonable accommodation to his handicap." Potvin v. Champlain Cable Corp., 165 Vt. 504, 687 A.2d 95 (1996).

Determining whether employee satisfies definition of a "qualified handicapped individual" requires two distinct determinations: what constitutes the essential functions of the job and what constitutes reasonable accommodation. State v. G.S. Blodgett Co., 163 Vt. 175, 656 A.2d 984 (1995).

While employers should conduct an individualized inquiry to determine whether a handicapped employee requires an accommodation in order to advance the goals of 21 V.S.A. § 495d(6), there is no authority imposing liability for failure to conduct an adequate inquiry; liability attaches only when an employer discriminates against a qualified handicapped individual. State v. G.S. Blodgett Co., 163 Vt. 175, 656 A.2d 984 (1995).

If a court concludes that plaintiff is not a qualified handicapped individual, there is no actionable claim for discrimination under 21 V.S.A. § 495(a)(1). State v. G.S. Blodgett Co., 163 Vt. 175, 656 A.2d 984 (1995).

5. Employer.

Definition of employer does not contain a requirement that to be an employer one must have the power to fire. Fernot v. Crafts Inn, Inc., 895 F. Supp. 668 (D. Vt. 1995).

Because corporation was at most only employee's supervisor and supervisor could not be liable under former 21 V.S.A. § 495d(1), corporation was not liable to employee on her Fair Employment Practices Act claims. Fernot v. Crafts Inn, Inc., 895 F. Supp. 668 (D. Vt. 1995).

6. Burden of proof.

In action based on Vermont's Fair Employment Practices Act, it is sufficient for plaintiffs to present evidence as to employee's individual capabilities to perform the job in question and suggestions for some reasonable assistance or job modification by the employer in order to meet burden of proving that employee is a qualified handicapped individual. State v. G.S. Blodgett Co., 163 Vt. 175, 656 A.2d 984 (1995).

In action based on Vermont's Fair Employment Practices Act, it is plaintiffs' burden to prove that employee is a qualified handicapped individual. State v. G.S. Blodgett Co., 163 Vt. 175, 656 A.2d 984 (1995).

7. Essential functions.

Hospital's motion for summary judgment on a psychiatrist's claims under the Americans with Disabilities Act, 42 U.S.C.S. § 12112(b)(5)(A), and the Vermont Fair Employment Practices Act, 21 V.S.A. § 495d(6)(A), alleging that the hospital failed to accommodate his heart condition by permitting the psychiatrist to work part time with no call duty was denied because the psychiatrist presented sufficient evidence for a reasonable juror to conclude that call duty was not an essential job function where the psychiatrist showed instances where a doctor would take "first call" but another doctor would go in to the hospital if needed, and the hospital apparently permitted at least one staff psychiatrist to eliminate call duty when she moved a greater distance from the medical facility. Mueller v. Rutland Mental Health Services, Inc., - F. Supp. 2d - (D. Vt. Aug. 17, 2006).

Summary judgment was appropriate in handicapped discrimination action brought under Vermont's Fair Employment Practices Act because there were no genuine issues of material fact suggesting that employee was capable of performing the essential functions of a general helper with or without reasonable accommodation. State v. G.S. Blodgett Co., 163 Vt. 175, 656 A.2d 984 (1995).

When employee with multiple sclerosis asked for reinstatement, wiring was no longer performed by employer's employees, and, therefore, wiring could not be considered an essential function of the general helper job for which employee sought reinstatement. State v. G.S. Blodgett Co., 163 Vt. 175, 656 A.2d 984 (1995).

8. Hostile work environment.

Fact that testimony indicated that coemployee was always making sexual remarks and regularly leered at employee, rather than giving specific dates, did not negate its role in establishing a work environment of sufficiently pervasive sexual harassment. Fernot v. Crafts Inn, Inc.,, 895 F. Supp. 668 (D. Vt. 1995).

9. Evidence.

Vermont law does not indicate that a prima facie case of retaliation for complaints of sexual harassment under Vermont's Fair Employment Practices Act necessarily constitutes a prima facie case of intentional infliction of emotional distress. Fernot v. Crafts Inn, Inc.,, 895 F. Supp. 668 (D. Vt. 1995).

Although employer argued that former employee's sworn statement in Social Security proceeding that she was physically incapable of performing the job of general helper was dispositive on the issue of whether employee was qualified under 21 V.S.A. § 495(a)(1), employee's statements could not be dispositive on the issue of whether she was a qualified handicapped individual because they were made without regard for the essential functions of the job and whether reasonable accommodations would enable her to perform the job; however, they were probative of her job-related capabilities and the severity of her handicap. State v. G.S. Blodgett Co., 163 Vt. 175, 656 A.2d 984 (1995).

10. Reasonable accommodation.

The reasonable accommodation an employer must make for an employee's disability does not include an obligation to transfer that employee solely to allow him to work under a different supervisor. Brace v. International Business Machines Corp., 953 F. Supp. 561 (D. Vt. 1997).

In handicapped discrimination action, plaintiffs failed to present evidence that a reasonable accommodation was possible where plaintiffs' proposals envisioned eliminating all of the present functions of a general helper and reintroducing an obsolete employee function of wiring. State v. G.S. Blodgett Co., 163 Vt. 175, 656 A.2d 984 (1995).

When an employer concludes that no accommodations are reasonable, that decision is tantamount to a determination that the employee is not a qualified handicapped individual within the meaning of 21 V.S.A. § 495d(6). State v. G.S. Blodgett Co., 163 Vt. 175, 656 A.2d 984 (1995).

Cited. Packard v. Gordon, 148 Vt. 579, 537 A.2d 140 (1987).

§ 495e. Restitution.

The Superior Courts may order restitution of wages or other benefits on behalf of a class of employees similarly situated, and may order reinstatement and other appropriate relief on behalf of a class of employees.

Added 1975, No. 198 (Adj. Sess.), § 4, eff. July 1, 1977.

§ 495f. Exemptions.

Notwithstanding any other provision of this subchapter, it is not unlawful discrimination on the basis of age or disability for any employer, employment agency or labor organization to observe the terms of a bona fide seniority system or any bona fide employee benefit plan, such as a retirement, pension, or life or health insurance plan, any of which is not a subterfuge to evade the purposes of this subchapter. No employee benefit plan, however, excuses the failure to hire any individual. No seniority system or employee benefit plan shall require or permit the involuntary retirement of any individual because of age. Mandatory retirement on account of age, necessitated under a police or firefighter retirement system, is specifically authorized.

Added 1981, No. 65 , § 4; amended 1999, No. 103 (Adj. Sess.), § 3.

History

Amendments--1999 (Adj. Sess.). Substituted "of age or disability for" for "of age or handicapping condition for" in the first sentence.

ANNOTATIONS

1. Constitutionality.

Mandatory retirement line currently drawn by the Legislature for public safety officers bears a reasonable and just relation to a legitimate state interest, and for that reason, there is no violation of the Common Benefits Clause. Badgley v. Walton, 188 Vt. 367, 10 A.3d 469 (2010).

Statutory exception to the Vermont Fair Employment Practices Act for law enforcement officers, authorizing the mandatory retirement of police officers, does not violate the Common Benefits Clause. Badgley v. Walton, 188 Vt. 367, 10 A.3d 469 (2010).

Cited. Galvin v. Vermont, 598 F. Supp. 144 (D. Vt. 1984).

§ 495g. Provision applicable to college professors.

Nothing in this subchapter shall be construed to prohibit any institution of higher education as defined by section 1201(a) of the federal Higher Education Act of 1965 from retiring any employee who is serving under a contract of unlimited tenure, who attains 65 years of age prior to July 1, 1982, or 70 years of age thereafter. Any employee whose tenure contract is terminated may, in the discretion of the institution, be allowed to continue in the employ of the institution on a nontenured basis.

Added 1981, No. 65 , § 5; amended 2017, No. 74 , § 38.

History

Reference in text. Section 1201(a) of the federal Higher Education Act of 1965, referred to in the first sentence, is codified as 20 U.S.C. § 1141(a).

Amendments--2017. Substituted "subchapter" for "act" preceding "shall be construed" in the first sentence.

§ 495h. Sexual harassment.

All employers, employment agencies, and labor organizations have an obligation to ensure a workplace free of sexual harassment.

(2) All persons who engage a person to perform work or services have an obligation to ensure a working relationship with that person that is free from sexual harassment.

(b) Every employer shall:

  1. Adopt a policy against sexual harassment that shall include:
    1. a statement that sexual harassment in the workplace is unlawful;
    2. a statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment or for cooperating in an investigation of sexual harassment;
    3. a description and examples of sexual harassment;
    4. a statement of the range of consequences for employees who commit sexual harassment;
    5. if the employer has more than five employees, a description of the process for filing internal complaints about sexual harassment and the names, addresses, and telephone numbers of the person or persons to whom complaints should be made; and
    6. the complaint process of the appropriate State and federal employment discrimination enforcement agencies, and directions as to how to contact such agencies.
  2. Post in a prominent and accessible location in the workplace, a poster providing, at a minimum, the elements of the employer's sexual harassment policy required by subdivision (1) of this subsection.
  3. Provide to all employees an individual written copy of the employer's policy against sexual harassment.

    (c) (1) Employers shall provide individual copies of their written policies to new employees upon their being hired.

    (2) If an employer makes changes to its policy against sexual harassment, it shall provide to all employees a written copy of the updated policy.

    (d) The Commissioner of Labor shall prepare and provide to employers subject to this section a model policy and a model poster, which may be used by employers for the purposes of this section.

    (e) A claim that an individual did not receive the information required to be provided by this section shall not, in and of itself, result in the automatic liability of any employer to any current or former employee or applicant in any action alleging sexual harassment. An employer's compliance with the notice requirements of this section does not insulate the employer from liability for sexual harassment of any current or former employee or applicant.

    (f) (1) Employers and labor organizations are encouraged to conduct an education and training program for all new employees and members that includes at a minimum all the information outlined in this section within one year after commencement of employment.

    (2) Employers and labor organizations are encouraged to conduct an annual education and training program for all employees and members that includes at a minimum all the information outlined in this section.

    (3) Employers are encouraged to conduct additional training for new supervisory and managerial employees and members within one year after commencement of employment or membership, which should include at a minimum the information outlined in this section, the specific responsibilities of supervisory and managerial employees, and the actions that these employees must take to ensure immediate and appropriate corrective action in addressing sexual harassment complaints.

    Employers, labor organizations, and appropriate State agencies are encouraged to cooperate in making this training available.

    (g) (1) An employer shall not require any employee or prospective employee, as a condition of employment, to sign an agreement or waiver that does either of the following:

    1. prohibits, prevents, or otherwise restricts the employee or prospective employee from opposing, disclosing, reporting, or participating in an investigation of sexual harassment; or
    2. except as otherwise permitted by State or federal law, purports to waive a substantive or procedural right or remedy available to the employee with respect to a claim of sexual harassment.

      (2) Any provision of an agreement that violates subdivision (1) of this subsection shall be void and unenforceable.

      (h) (1) An agreement to settle a claim of sexual harassment shall not prohibit, prevent, or otherwise restrict the employee from working for the employer or any parent company, subsidiary, division, or affiliate of the employer.

      (2) An agreement to settle a sexual harassment claim shall expressly state that:

      (A) it does not prohibit, prevent, or otherwise restrict the individual who made the claim from doing any of the following:

      1. lodging a complaint of sexual harassment committed by any person with the Attorney General, a State's Attorney, the Human Rights Commission, the Equal Employment Opportunity Commission, or any other State or federal agency;
      2. testifying, assisting, or participating in any manner with an investigation related to a claim of sexual harassment conducted by the Attorney General, a State's Attorney, the Human Rights Commission, the Equal Employment Opportunity Commission, or any other State or federal agency;
      3. complying with a valid request for discovery in relation to civil litigation or testifying in a hearing or trial related to a claim of sexual harassment that is conducted by a court, pursuant to an arbitration agreement, or before another appropriate tribunal; or
      4. 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 purposes of collective bargaining or mutual aid and protection; and

        (B) it does not waive any rights or claims that may arise after the date the settlement agreement is executed.

        (3) Any provision of an agreement to settle a sexual harassment claim that violates subdivision (1) or (2) of this subsection shall be void and unenforceable with respect to the individual who made the claim.

  4. Nothing in subdivision (2) of this subsection shall be construed to prevent an agreement to settle a sexual harassment claim from waiving or releasing the claimant's right to seek or obtain any remedies relating to sexual harassment of the claimant by another party to the agreement that occurred before the date on which the agreement is executed.

    (i) (1) (A) (i) For the purpose of assessing compliance with the provisions of this section, the Attorney General or designee, or, if the employer is the State, the Human Rights Commission or designee, may, with 48 hours' notice, at reasonable times and without unduly disrupting business operations enter and inspect any place of business or employment, question any person who is authorized by the employer to receive or investigate complaints of sexual harassment, and examine an employer's records, policies, procedures, and training materials related to the prevention of sexual harassment and the requirements of this section.

    (ii) An employer may agree to waive or shorten the 48-hour notice period.

    (iii) As used in this subsection (i), the term "records" includes de-identified data regarding the number of complaints of sexual harassment received and the resolution of each complaint.

    (B) The employer shall at reasonable times and without unduly disrupting business operations make any persons who are authorized by the employer to receive or investigate complaints of sexual harassment and any records, policies, procedures, and training materials related to the prevention of sexual harassment and the requirements of this section available to the Attorney General or designee or, if the employer is the State, the Human Rights Commission or designee.

    (2) Following an inspection and examination pursuant to subdivision (1) of this subsection (i), the Attorney General or the Human Rights Commission shall notify the employer of the results of the inspection and examination, including any issues or deficiencies identified, provide resources regarding practices and procedures for the prevention of sexual harassment that the employer may wish to adopt or utilize, and identify any technical assistance that the Attorney General or the Human Rights Commission may be able to provide to help the employer address any identified issues or deficiencies. If the Attorney General or the Human Rights Commission determines that it is necessary to ensure the employer's workplace is free from sexual harassment, the employer may be required, for a period of up to three years, to provide an annual education and training program that satisfies the provisions of subdivision (4) of this subsection to all employees or to conduct an annual, anonymous working-climate survey, or both.

    (3) (A) The Attorney General shall keep records, materials, and information related to or obtained through an inspection carried out pursuant to this subsection (i) confidential as provided pursuant to 9 V.S.A. § 2460(a)(4) .

    (B) The Human Rights Commission shall keep records, materials, and information related to or obtained through an inspection carried out pursuant to this subsection (i) confidential as provided pursuant to 9 V.S.A. § 4555 .

    (4) If required by the Attorney General or Human Rights Commission pursuant to subdivision (2) of this subsection, an employer shall conduct:

    1. an annual education and training program for all employees that includes at a minimum all the information outlined in this section; and
    2. an annual education and training program for supervisory and managerial employees that includes at a minimum all the information outlined in this section, the specific responsibilities of supervisory and managerial employees, and the actions that these employees must take to ensure immediate and appropriate corrective action in addressing sexual harassment complaints.

      (j) The Attorney General shall adopt rules as necessary to implement the provisions of this section.

      Added 1993, No. 39 , § 4, eff. Oct. 1, 1993; amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2017, No. 183 (Adj. Sess.), § 1.

History

Amendments--2017 (Adj. Sess.). Subsec. (a): Added the subdiv. (1) designation and subdiv. (2).

Subsecs. (c) and (f): Amended generally.

Subsecs. (g)-(j): Added.

Amendments--2005 (Adj. Sess.) Subsection (d): Substituted "Commissioner of Labor" for "commissioner of labor and industry".

§ 495i. Employment based on credit information; prohibitions.

  1. As used in this section:
    1. "Confidential financial information" means sensitive financial information of commercial value that a customer or client of the employer gives explicit authorization for the employer to obtain, process, and store and that the employer entrusts only to managers or employees as a necessary function of their job duties.
    2. "Credit history" means information obtained from a third party, whether or not contained in a credit report, that reflects or pertains to an individual's prior or current:
      1. borrowing or repaying behavior, including the accumulation, payment, or discharge of financial obligations; or
      2. financial condition or ability to meet financial obligations, including debts owed, payment history, savings or checking account balances, or savings or checking account numbers.
    3. "Credit report" has the same meaning as in 9 V.S.A. § 2480a .
  2. An employer shall not:
    1. Fail or refuse to hire or recruit; discharge; or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment because of the individual's credit report or credit history.
    2. Inquire about an applicant or employee's credit report or credit history.
    1. An employer is exempt from the provisions of subsection (b) of this section if one or more of the following conditions are met: (c) (1)  An employer is exempt from the provisions of subsection (b) of this section if one or more of the following conditions are met:
      1. The information is required by State or federal law or regulation.
      2. The position of employment involves access to confidential financial information.
      3. The employer is a financial institution as defined in 8 V.S.A. § 11101(32) or a credit union as defined in 8 V.S.A. § 30101(5) .
      4. The position of employment is that of a law enforcement officer as defined in 20 V.S.A. § 2351a , emergency medical personnel as defined in 24 V.S.A. § 2651(6) , or a firefighter as defined in 20 V.S.A. § 3151(3) .
      5. The position of employment requires a financial fiduciary responsibility to the employer or a client of the employer, including the authority to issue payments, collect debts, transfer money, or enter into contracts.
      6. The employer can demonstrate that the information is a valid and reliable predictor of employee performance in the specific position of employment.
      7. The position of employment involves access to an employer's payroll information.
    2. An employer that is exempt from the provisions of subsection (b) of this section may not use an employee's or applicant's credit report or history as the sole factor in decisions regarding employment; compensation; or a term, condition, or privilege of employment.
  3. If an employer seeks to obtain or act upon an employee's or applicant's credit report or credit history pursuant to subsection (c) of this section that contains information about the employee's or applicant's credit score, credit account balances, payment history, savings or checking account balances, or savings or checking account numbers, the employer shall:
    1. Obtain the employee's or applicant's written consent each time the employer seeks to obtain the employee's or applicant's credit report.
    2. Disclose in writing to the employee or applicant the employer's reasons for accessing the credit report and, if an adverse employment action is taken based upon the credit report, disclose the reasons for the action in writing. The employee or applicant has the right to contest the accuracy of the credit report or credit history.
    3. Ensure that none of the costs associated with obtaining an employee's or an applicant's credit report or credit history are passed on to the employee or applicant.
    4. Ensure that the information in the employee's or applicant's credit report or credit history is kept confidential and, if the employment is terminated or the applicant is not hired by the employer, provide the employee or applicant with the credit report or have the credit report destroyed in a secure manner that ensures the confidentiality of the information in the report.
  4. An employer shall not discharge or in any other manner discriminate against an employee or applicant who has filed a complaint of unlawful employment practices in violation of this section or who has cooperated with the Attorney General or a State's Attorney in an investigation of such practices or who is about to lodge a complaint or cooperate in an investigation or because the employer believes that the employee or applicant may lodge a complaint or cooperate in an investigation.
  5. Notwithstanding subsection (c) of this section, an employer shall not seek or act upon credit reports or credit histories in a manner that results in adverse employment discrimination prohibited by federal or State law, including section 495 of this title and Title VII of the Civil Rights Act of 1964.
  6. This section shall apply only to employers, employees, and applicants for employment and only to employment-related decisions based on a person's credit history or credit report. It shall not affect the rights of any person, including financial lenders or investors, to obtain credit reports pursuant to other law.

    Added 2011, No. 154 (Adj. Sess.), § 2; amended 2021, No. 20 , § 218.

History

2015. In subdiv. (a)(3), substituted "9 V.S.A. § 2480a" for "9 V.S.A. § 2480(a)" to correct cross-reference.

2013. In the introductory language of subsection (a), substituted "As used in" for "For purposes of" preceding "this section" to conform to V.S.A. style.

Amendments--2021. Subdiv. (c)(1)(D): Substituted "20 V.S.A. § 2351a" for "20 V.S.A. § 2358".

§ 495j. Criminal history records; employment applications.

  1. Except as provided in subsection (b) of this section, an employer shall not request criminal history record information on its initial employee application form. An employer may inquire about a prospective employee's criminal history record during an interview or once the prospective employee has been deemed otherwise qualified for the position.
    1. An employer may inquire about criminal convictions on an initial employee application form if the following conditions are met: (b) (1)  An employer may inquire about criminal convictions on an initial employee application form if the following conditions are met:
        1. the prospective employee is applying for a position for which any federal or State law or regulation creates a mandatory or presumptive disqualification based on a conviction for one or more types of criminal offenses; or (A) (i) the prospective employee is applying for a position for which any federal or State law or regulation creates a mandatory or presumptive disqualification based on a conviction for one or more types of criminal offenses; or
        2. the employer or an affiliate of the employer is subject to an obligation imposed by any federal or State law or regulation not to employ an individual, in either one or more positions, who has been convicted of one or more types of criminal offenses; and
      1. the questions on the application form are limited to the types of criminal offenses creating the disqualification or obligation.
    2. An employer shall be permitted to inquire about criminal convictions on an initial employee application form pursuant to subdivision (1) of this subsection even if the federal or State law or regulation creating an obligation for the employer or its affiliate not to employ an individual who has been convicted of one or more types of criminal offenses also permits the employer or its affiliate to obtain a waiver that would allow the employer or its affiliate to employ such an individual.
  2. If an employer inquires about a prospective employee's criminal history record information, the prospective employee, if still eligible for the position under applicable federal or State law, must be afforded an opportunity to explain the information and the circumstances regarding any convictions, including postconviction rehabilitation.
  3. An employer who violates the provisions of this section shall be assessed a civil penalty of up to $100.00 for each violation.
  4. As used in this section:
    1. "Criminal history record" has the same meaning as set forth in 20 V.S.A. § 2056a .
    2. "Employee" has the same meaning as set forth in section 495d of this chapter.
    3. "Employer" has the same meaning as set forth in section 495d of this chapter.

      Added 2015, No. 81 (Adj. Sess.), § 1, eff. July 1, 2017.

§ 495k. Accommodations for pregnancy-related conditions.

    1. It shall be an unlawful employment practice for an employer to fail to provide a reasonable accommodation for an employee's pregnancy-related condition, unless it would impose an undue hardship on the employer. (a) (1)  It shall be an unlawful employment practice for an employer to fail to provide a reasonable accommodation for an employee's pregnancy-related condition, unless it would impose an undue hardship on the employer.
    2. An employee with a pregnancy-related condition, regardless of whether the employee is an "individual with a disability" as defined in subdivision 495d(5) of this subchapter, shall have the same rights and be subject to the same standards with respect to the provision of a reasonable accommodation, pursuant to this subchapter, as a qualified individual with a disability as defined in subdivision 495d(6) of this subchapter.
  1. Nothing in this section shall be construed to diminish the rights, privileges, or remedies of an employee pursuant to federal or State law, a collective bargaining agreement, or an employment contract.
  2. An employer shall post notice of the provisions of this section in a form provided by the Commissioner in a place conspicuous to employees at the employer's place of business.
  3. Nothing in this section shall be construed to indicate or deem that a pregnancy-related condition necessarily constitutes a disability.

    Added 2017, No. 21 , § 2, eff. Jan. 1, 2018.

§ 21/495l. Social media account privacy; prohibitions.

  1. As used in this section:
    1. "Social media account" means an account with an electronic medium or service through which users create, share, and interact with content, including videos, still photographs, blogs, video blogs, podcasts, instant or text messages, e-mail, online services or accounts, or Internet website profiles or locations. "Social media account" does not include an account provided by an employer or intended to be used primarily on behalf of an employer.
    2. "Specifically identified content" means data, information, or other content stored in a social media account that is identified with sufficient particularity to distinguish the individual piece of content being sought from any other data, information, or content stored in the account. "Specifically identified content" shall not include a username, password, or other means of authentication for the purpose of accessing an employee's or applicant's social media account.
  2. An employer shall not require, request, or coerce an employee or applicant to do any of the following:
    1. disclose a username, password, or other means of authentication, or turn over an unlocked personal electronic device for the purpose of accessing the employee's or applicant's social media account;
    2. access a social media account in the presence of the employer;
    3. divulge or present any content from the employee's or applicant's social media account; or
    4. change the account or privacy settings of the employee's or applicant's social media account to increase third-party access to its contents.
  3. An employer shall not require or coerce an employee or applicant to add anyone, including the employer, to his or her list of contacts associated with a social media account.
  4. No agreement by an employee to waive his or her rights under this section shall be valid.
    1. Nothing in this section shall preclude an employer from requesting an employee to share specifically identified content for the purpose of: (e) (1)  Nothing in this section shall preclude an employer from requesting an employee to share specifically identified content for the purpose of:
      1. complying with the employer's legal and regulatory obligations;
      2. investigating an allegation of the unauthorized transfer or disclosure of an employer's proprietary or confidential information or financial data through an employee's or an applicant's social media account; or
      3. investigating an allegation of unlawful harassment, threats of violence in the workplace, or discriminatory or disparaging content concerning another employee.
    2. Nothing in this section shall prohibit or restrict a law enforcement agency, as defined in 15 V.S.A. § 1151(5) , from requesting or requiring:
      1. an applicant to provide access to the applicant's social media account as part of a screening or fitness determination during the hiring process; or
      2. an employee to provide access to the employee's social media account in relation to a continued fitness determination or an allegation or investigation of employee misconduct, a violation of policy, or a violation of law.
    3. Nothing in this section shall restrict or otherwise prohibit a law enforcement agency, as defined in 15 V.S.A. § 1151(5) , from retaining any social media account information acquired pursuant to this subsection, provided that the information shall be protected in accordance with law and the law enforcement agency's policy.
    4. Nothing in this section shall be construed to prevent an employer from complying with the requirements of State or federal law.
  5. Nothing in this section shall preclude an employer from requesting or requiring an employee to provide a username or password that is necessary to access an employer-issued electronic device.
  6. An employer shall not discharge or in any other manner retaliate against an employee who exercises or attempts to exercise his or her rights under this section. The provisions against retaliation in subdivision 495(a)(8) of this title and the penalty and enforcement provisions of section 495b of this title shall apply to this section.

    Added 2017, No. 37 , § 1, eff. Jan. 1, 2018.

History

2017. Section 495k, as added by 2017, No. 37 , § 1, was redesignated as section 495 l to avoid conflict with section 495k as added by 2017, No. 21 , § 2.

§ 495m. Salary history; employment applications.

  1. An employer shall not:
    1. inquire about or seek information regarding a prospective employee's current or past compensation from either the prospective employee or a current or former employer of the prospective employee;
    2. require that a prospective employee's current or past compensation satisfy minimum or maximum criteria; or
    3. determine whether to interview a prospective employee based on the prospective employee's current or past compensation.
  2. Notwithstanding subdivision (a)(1) of this section, if a prospective employee voluntarily discloses information about his or her current or past compensation, an employer may, after making an offer of employment with compensation to the prospective employee, seek to confirm or request that the prospective employee confirm that information.
  3. Nothing in this section shall be construed to prevent an employer from:
    1. inquiring about a prospective employee's salary expectations or requirements; or
    2. providing information about the wages, benefits, compensation, or salary offered in relation to a position.
  4. As used in this section, "compensation" includes wages, salary, bonuses, benefits, fringe benefits, and equity-based compensation.

    Added 2017, No. 126 (Adj. Sess.), § 1.

§ 495n. Sexual harassment complaints; notice to Attorney General and Human Rights Commission.

  1. A person that files a claim of sexual harassment pursuant to section 495b of this subchapter in which neither the Attorney General nor the Human Rights Commission is a party shall provide notice of the action to the Attorney General and the Human Rights Commission within 14 days after filing the complaint. The notice may be submitted electronically and shall include a copy of the filed complaint.
    1. Upon receiving notice of a complaint in which the State is a party, the Human Rights Commission may elect to: (b) (1)  Upon receiving notice of a complaint in which the State is a party, the Human Rights Commission may elect to:
      1. intervene in the action to seek remedies pursuant to section 495b of this subchapter; or
      2. without becoming a party to the action, file a statement with the court addressing questions of law related to the provisions of this subchapter.
    2. Upon receiving notice of a complaint in which the State is not a party, the Attorney General may elect to:
      1. intervene in the action to seek remedies pursuant to section 495b of this subchapter; or
      2. without becoming a party to the action, file a statement with the court addressing questions of law related to the provisions of this subchapter.

        Added 2017, No. 183 (Adj. Sess.), § 7.

§ 496. Legislative leave.

  1. Any person who, in order to serve as a member of the General Assembly, must leave a full-time position in the employ of any employer, shall be entitled to a temporary or partial leave of absence for the purpose of allowing such employee to perform any official duty in connection with his or her elected office.  Such leave of absence shall not cause loss of job status, seniority, or the right to participate in insurance and other employee benefits during the leave of absence.
  2. An employee who intends to seek election to the General Assembly and to invoke, if elected, his or her right to a leave of absence pursuant to subsection (a) of this section, shall notify his or her employer of those intentions in writing within 10 days after filing the primary election nominating petition required by 17 V.S.A. § 2353 or of taking any other action required by 17 V.S.A. chapter 49, to place his or her name on a primary or general election ballot.  An employee who fails to give notice to his or her employer as required by this section shall be deemed to have waived his or her right to a leave of absence under subsection (a) of this section.
  3. An employer who contends that granting the leave of absence required by subsection (a) of this section will cause unreasonable hardship for his or her business may appeal for relief by letter to the Chair of the State Labor Relations Board created by 3 V.S.A. § 921 .  The right to such appeal shall be waived unless it is filed within 14 days of receipt of the notice required by subsection (b) of this section.  The appeal shall state the name of the employee and the reasons for the alleged unreasonable hardship.  The remedy created by this subsection shall be the exclusive remedy for an employer who claims unreasonable hardship as a result of the application to him or her of subsection (a) of this section.
  4. The Chair of the State Labor Relations Board, or any member of the Board designated by the Chair, shall serve as an arbitrator in any case appealed pursuant to subsection (c) of this section.  The proceedings shall include an opportunity for the employee to respond, orally or in writing, to the allegations of unreasonable hardship raised by the employer, and shall be conducted in accord with the rules of practice of the State Labor Relations Board.  Within 30 days of receipt of a notice of appeal, the arbitrator shall issue an order, which shall be binding on both parties, either granting or denying the employer's claim of unreasonable hardship.  If the employer's claim is granted, the employee shall not be entitled to the protection of subsection (a) of this section. In reaching his or her decision, the arbitrator shall consider, but is not limited to, the following factors:
    1. the length of time the employee has been employed by the employer;
    2. the number of employees in the employer's business;
    3. the nature of the employer's business;
    4. the nature of the position held by the employee and the ease or difficulty and cost of temporarily filling the position during the leave of absence; and
    5. any agreement entered into between the employee and employer as a condition of employment.
  5. This section is not applicable if the employer employs five or fewer persons immediately prior to the first day of the leave of absence.
  6. Any attorney, party, witness, or juror who, while a member of and during sessions of the General Assembly, is assigned or scheduled to appear in any court of the State of Vermont shall be entitled to a leave of absence or postponement from such judicial duties when his or her duties in the Legislature are more compelling, for the purpose of allowing the member to perform any official duties in connection with his or her elected office.  The leave of absence or postponement shall not prejudice the member or the cause involved.

    Added 1979, No. 162 (Adj. Sess.); amended 1981, No. 230 (Adj. Sess.).

History

2016. In subsecs. (c) and (d), substituted "Chair" for "chairman" in accordance with 2013, No. 161 (Adj. Sess.), § 72.

Amendments--1981 (Adj. Sess.). Subsection (f): Added.

ANNOTATIONS

1. Court appearance.

Subsection (f) of this section, providing that an attorney-legislator shall be excused from court appearance whenever legislative duties are more "compelling" than his or her judicial appearance, neither pronounces a per se rule establishing legislative attendance as more important than all small claims disputes, nor purports to grant a party authority to fail to appear, without court permission, based simply upon an attorney-legislator's own subjective conclusion that his legislative duties are more compelling. Knight v. LaClair's Auto Body, 145 Vt. 637, 497 A.2d 368 (1985).

Cited. State v. Champlain Cable Corp., 147 Vt. 436, 520 A.2d 596 (1986).

§ 496a. State funds; union organizing.

An employer that is the recipient of a grant of State funds in a single grant of more than $1,000.00 shall certify to the State that none of the funds will be used to interfere with or restrain the exercise of an employee's rights with respect to unionization and upon request shall provide records to the Secretary of Administration which attest to such certification.

Added 2011, No. 154 (Adj. Sess.), § 4; amended 2013, No. 1 , § 94, eff. March 7, 2013.

History

Amendments--2013. Substituted "An" for "On an annual basis" preceding "employer" and "$1,000.00" for "$1,001.00" preceding "shall certify" at the beginning of the section.

Subchapter 7. Employment of People with Disabilities

History

Amendments--1991 (Adj. Sess.). 1991, No. 168 (Adj. Sess.), § 1, substituted "People with Disabilities" for "Handicapped Persons" in the subchapter heading.

Cross References

Cross references. Employment of handicapped persons by the State, see 3 V.S.A. § 309a.

Fair employment practices, see § 495 et seq. of this title.

Operation of vending machines by blind and visually impaired, see § 501 et seq. of this title.

§ 497. Purpose.

The purpose of this subchapter is to carry on a continuing program to promote the employment of people with disabilities in Vermont by creating statewide interest in the rehabilitation and employment of people with disabilities and by obtaining and maintaining cooperation with all public and private groups and individuals in this field.

1963, No. 200 , § 1, eff. June 29, 1963; amended 1991, No. 168 (Adj. Sess.), § 2.

History

Amendments--1991 (Adj. Sess.). Substituted "people with disabilities in" for "the physically, mentally, emotionally and otherwise handicapped citizens of" preceding "Vermont" and "people with disabilities" for "the handicapped" preceding "and by obtaining".

§ 497a. Committee established.

There is hereby established a permanent committee to be known as the Vermont Governor's Committee on Employment of People with Disabilities, to consist of 23 members, including one representative each from the Vermont Department of Labor's Workforce Development Division and the Jobs for Veterans State Grant, one representative from the Department of Disabilities, Aging, and Independent Living, Vocational Rehabilitation Division and one from the Division for the Blind and Visually Impaired, one representative of the U.S. Department of Veterans Affairs, one representative of the State of Vermont Office of Veterans Affairs, and 17 members to be appointed by the Governor. The appointive members shall hold office for the term specified or until their successors are named by the Governor. The members shall receive no salary for their services as such, but the necessary expenses of the Committee shall be paid by the State.

Added 1963, No. 200 , § 2, eff. June 29, 1963; amended 1991, No. 168 (Adj. Sess.), § 3; 2005, No. 174 (Adj. Sess.), § 51; 2015, No. 51 , § C.5, eff. June 3, 2015.

History

Revision note. Substituted "Vermont employment service division" for "state employment service" in the first sentence to conform reference to § 1305 of this title.

Substituted "department of social and rehabilitation services" for "state board of education" following "vocational rehabilitation division of the" in the first sentence to conform reference to reorganization of state government. See § 3084 of Title 3.

In the last sentence, substituted "on June 29, 1963" for "at the time of the passage of this subchapter" for purposes of clarity.

Amendments--2015. Section amended generally.

Amendments--2005 (Adj. Sess.). Substituted "21 members" for "twenty-one members"; inserted "disabilities" preceding "aging" and substituted "independent living" for "disabilities" in the first sentence.

Amendments--1991 (Adj. Sess.). Substituted "people with disabilities" for "the handicapped" preceding "to consist" and "aging and disabilities" for "social and rehabilitation services" following "department of" in the first sentence.

§ 497b. Duties.

  1. The Committee shall coordinate a program to promote the employment of people with disabilities by creating statewide interest in the rehabilitation and employment of people with disabilities and by obtaining and maintaining cooperation from all public and private groups in this field. The Committee shall work in cooperation with the President's Committee on Employment of People with Disabilities in order to carry out more effectively the purposes of this subchapter.
  2. [Repealed.]

    Added 1963, No. 200 , § 3, eff. June 29, 1963; amended 1985, No. 179 (Adj. Sess.), § 2, eff. May 13, 1986; 1991, No. 168 (Adj. Sess.), § 4; 2011, No. 139 (Adj. Sess.), § 51, eff. May 14, 2012.

History

Amendments--2011 (Adj. Sess.). Subsec. (b): Repealed.

Amendments--1991 (Adj. Sess.). Subsec. (a): Substituted "people with disabilities" for "handicapped persons" preceding "by creating" in the first sentence and "people with disabilities" for "the handicapped" preceding "and by obtaining" in that sentence and preceding "in order" in the second sentence.

Amendments--1985 (Adj. Sess.). Designated existing provisions of section as subsec. (a), substituted "coordinate a" for "carry on a continuing" following "shall" in the first sentence of that subsection and added subsec. (b).

§ 497c. Disability awareness month.

The month of October is designated as "Disability Awareness Month."

Added 1963, No. 200 , § 4, eff. June 29, 1963; amended 1991, No. 168 (Adj. Sess.), § 5.

History

Amendments--1991 (Adj. Sess.). Amended section generally.

§ 497d. Powers.

The Vermont Governor's Committee on Employment of People with Disabilities is authorized to receive any gifts, grants, or donations made for any of the purposes of its program.

1963, No. 200 , § 6, eff. June 29, 1963; amended 1991, No. 168 (Adj. Sess.), § 6.

History

Amendments--1991 (Adj. Sess.). Substituted "People with Disabilities" for "the handicapped" following "Employment of".

§ 497e. Funds; revenue; use.

  1. The Chair of the Governor's Committee on Employment of People with Disabilities or his or her designated representative may authorize or sponsor fund-raising events and the revenue therefrom shall be placed in the account of the Governor's Committee on Employment of People with Disabilities.
  2. The Chair or his or her designated representative may authorize the sale of products which relate to Vermonters with disabilities and the revenue therefrom shall be placed in the account of the Governor's Committee on Employment of People with Disabilities.
  3. The funds credited to the Governor's Committee on Employment of People with Disabilities shall remain in the special account from year to year and shall not be put back into the General Fund.
  4. The Governor's Committee on Employment of People with Disabilities is also authorized to receive and keep in its account any gifts, grants, or donations.
  5. This account will be used in accordance with any of the purposes of the Governor's Committee on Employment of People with Disabilities program or activities, as established in this subchapter.

    Added 1975, No. 87 ; amended 1991, No. 168 (Adj. Sess.), § 7; 2013, No. 96 (Adj. Sess.), § 131.

History

Amendments--2013 (Adj. Sess.). Subsec. (b): Substituted "Vermonters with disabilities" for "handicapped Vermonters" following "related to".

Amendments--1991 (Adj. Sess.). Substituted "chair" for "chairman" preceding "of the governor's" in subsec. (a) and preceding "or his" in subsec. (b), made other minor changes in phraseology in those subsections, substituted "people with disabilities" for "the handicapped" following "employment of" wherever it appeared and deleted "Vermont" preceding "governor's" in subsec. (d).

§ 498. Repealed. 1981, No. 65, § 6.

History

Former § 498. Former § 498, relating to discrimination against the physically handicapped, was derived from 1973, No. 158 (Adj. Sess.). The subject matter is now covered by §§ 495 and 495b of this title.

Subchapter 8. Rights of Jurors and Witnesses

§ 499. Jurors and witnesses.

  1. No employer may discharge an employee by reason of his or her service as a juror, or penalize such employee or deprive him or her of any right, privilege, or benefit on a basis which discriminates between such employee and other employees not serving as jurors.  All employees shall be considered in the service of their employer during all times while serving as jurors in accordance with this section for purposes of determining seniority, fringe benefits, credit toward vacations, and other rights, privileges, and benefits of employment.
  2. No employer may discharge an employee by reason of the employee's absence from work while in attendance as a witness pursuant to a summons duly issued and served in any proceeding, civil or criminal, in any court of competent jurisdiction within or without the State, or in any other proceeding before a board, commission, attorney, or other person or tribunal in the State authorized by law to hear testimony under oath; nor shall an employer penalize such employee or deprive him or her of any right, privilege, or benefit on a basis which discriminates between such employee and other employees not appearing as witnesses.  All employees shall be considered in the service of their employer while appearing as witnesses in accordance with this section for purposes of determining seniority, fringe benefits, credit toward vacations, and other rights, privileges, and benefits of employment.
  3. A person who violates a provision of this section shall be fined not more than $200.00.

    Added 1969, No. 228 (Adj. Sess.), § 5, eff. March 31, 1970.

Cross References

Cross references. Excuse from jury duty by reason of undue hardship, see 4 V.S.A. § 962.

Excuse from jury service by reason of undue hardship on employer, see Rule 2, Rules for Qualification, List, Selection and Summoning of All Jurors.

Jurors' fees, see 32 V.S.A § 1511 et seq.

Witness fees, see 32 V.S.A § 1551 et seq.

ANNOTATIONS

1. Wages.

Legislature did not intend this section to require employers to pay employees' wages while they serve on juries. 1970-72 Op. Atty. Gen. 116.

Subchapter 9. Operation of Vending Facilities by Blind and Visually Impaired

§ 501. Definitions.

As used in this subchapter:

  1. "Person who is blind or visually impaired" means a person whose visual acuity with correction is no better than 20/60, or whose field of vision subtends an angle of no greater than 20 degrees.
  2. "Division" means the Division for the Blind and Visually Impaired.
  3. "State property" means any building or land owned, leased, or controlled by the Department of Buildings and General Services.
  4. "Vending facility" means a cafeteria, snack bar, cart service, concession stand, or other facility for the sale of newspapers, periodicals, confection, tobacco products, foods, beverages, and other articles or services which is operated by a person licensed under this subchapter.
  5. "Vending machine" means any coin or currency operated machine that sells food, tobacco, beverages, sundries, or other retail merchandise or service, but shall not include vending machines used in connection with the operation of rest room facilities.

    Added 1983, No. 221 (Adj. Sess.), § 2; amended 1995, No. 148 (Adj. Sess.), § 4(c)(1); 2013, No. 96 (Adj. Sess.), § 132.

History

Amendments--2013 (Adj. Sess.). Subdiv. (1): Substituted "Person who is blind or visually impaired" for "Blind or visually impaired person".

Amendments--1995 (Adj. Sess.) Subdiv. (3): Substituted "department of buildings and general services" for "department of state buildings".

§ 502. Duties.

The Division shall have the authority to:

  1. establish vending facilities on State property;
  2. coordinate with the Commissioner of Buildings and General Services or the designee of the Commissioner, for the establishment of vending facilities;
  3. issue licenses to persons who are blind or visually impaired for the operation of vending facilities on State property;
  4. provide vending facility equipment and an adequate initial stock of suitable articles to licensed persons who are blind or visually impaired;
  5. provide the necessary training and supervision to licensed persons who are blind or visually impaired;
  6. adopt rules to implement the provisions of this subchapter including criteria for the selection and operation of vending facilities and machines, distribution of income to vendors, and grievance procedures.

    Added 1983, No. 221 (Adj. Sess.), § 2; amended 1995, No. 148 (Adj. Sess.), § 4(c)(1), eff. May 6, 1996; 2013, No. 96 (Adj. Sess.), § 133.

History

Amendments--2013 (Adj. Sess.). Subdivs. (3)-(5): Substituted "persons who are blind or visually impaired" for "blind or visually impaired persons".

Amendments--1995 (Adj. Sess.) Subdiv. (2): Substituted "commissioner of buildings and general services" for "commissioner of state buildings".

Prospective repeal of 2019, No. 150 (Adj. Sess.), §§ 1 and 2 notes. 2019, No. 150 (Adj. Sess.), § 3, as amended by Acts 2021, No. 2 , § 4, provides: "In the absence of legislative action to the contrary, Secs. 1 and 2 of this act are repealed on the 30th day following the termination of the state of emergency declared in response to COVID-19 pursuant to Executive Order 01-20."

Retroactive applicability of 2019, No. 150 (Adj. Sess.), §§ 1 and 2 notes. 2019, No. 150 (Adj. Sess.), § 7(a) provides: "Notwithstanding 1 V.S.A. § 214, the section and Sec. 1 and 2 of this act shall take effect on passage and shall apply retroactively to March 1, 2020."

Retroactive applicability of 2021, No. 2 , § 4 note. 2021, No. 2 , § 5 provides: "This act shall take effect on passage; except that notwithstanding 1 V.S.A. § 214, Secs. 2, 3, and 4 shall take effect retroactively on January 15, 2021."

Intent; workers' compensation; extension of COVID-19-related provisions 2021, No. 2 , § 1 provides: "It is the intent of the General Assembly to continue uninterrupted from January 15, 2021 until 30 days after the termination of the state of emergency declared in response to COVID-19 pursuant to Executive Order 01-20:

"(1) the Commissioner of Labor's authority pursuant to 2020 Acts and Resolves No. 150, Sec. 1 to temporarily extend deadlines and amend or waive specific requirements of Vermont's workers' compensation laws during a state of emergency related to COVID-19; and

"(2) the provisions of 2020 Acts and Resolves No. 150, Sec. 2 establishing in certain circumstances a rebuttable presumption that a worker who is diagnosed with COVID-19 is entitled to benefits under Vermont's workers' compensation laws.'

§ 503. Vending machines.

If it is determined by the Department of Disabilities, Aging, and Independent Living and the Department of Buildings and General Services that a vending facility is not economically feasible in a particular location, vending machines may be placed in that location. Contracts shall be awarded by the Department of Disabilities, Aging, and Independent Living in accordance with the procedures set forth in 29 V.S.A. § 161 , notwithstanding the $50,000.00 limitation therein.

Added 1983, No. 221 (Adj. Sess.), § 2; amended 1995, No. 62 , § 56, eff. April 26, 1995; 1995, No. 148 (Adj. Sess.), § 4(c)(1); 2005, No. 174 (Adj. Sess.), § 52.

History

Amendments--2005 (Adj. Sess.). Inserted "Disabilities" preceding "Aging" and substituted "Independent Living" for "disabilities" in two places.

Amendments--1995 (Adj. Sess.) Substituted "Department of Buildings and General Services" for "department of state buildings".

Amendments--1995 Substituted "Department of Aging and Disabilities" for "division" following "determined by" in the first sentence and following "awarded by the" in the second sentence and substituted "$50,000.00" for "$5,000.00" in the second sentence.

§ 504. Income from vending facilities and machines.

  1. All net income from a vending facility on State property shall accrue to the person who is blind or visually impaired and licensed to operate that facility.
  2. All net income from vending machines not placed within vending facilities on State property shall accrue to the Division.
  3. Income which accrues to the Division under this subchapter shall be used to:
    1. maintain or enhance the vending facilities program;
    2. provide benefit programs, including health insurance or pension plans for licensed persons who are blind or visually impaired who operate vending facilities;
    3. provide vocational rehabilitation services for persons who are blind or visually impaired.

      Added 1983, No. 221 (Adj. Sess.), § 2; amended 2005, No. 71 , § 135; 2013, No. 96 (Adj. Sess.), § 134.

History

Amendments--2013 (Adj. Sess.). Subsec. (a): Substituted "person who is blind or visually impaired and" for "blind or visually impaired person" following "accrue to the".

Subdiv. (c)(2): Deleted ", but not limited to," following "including" and substituted "persons who are blind or visually impaired" for "blind or visually impaired persons" following "licensed".

Amendments--2005 Subsec. (c): Made a minor stylistic change in subdiv. (1), made a minor change in punctuation in subdiv. (2), and added subdiv. (3).

§ 505. Vending facilities; operation by other than a person who is blind or visually impaired.

Where vending facilities on State property are operated by those other than persons who are blind or visually impaired on July 1, 1984, the contracts of these vending facilities may be renewed or extended. A person who does not intend to renew or extend such a contract shall so notify the Director of the Division in a timely manner. Within 30 days of such notice, the Director shall determine whether the vending facility is suited for operation by a person who is blind or visually impaired. If the Director determines that the facility is suited for operation by such person, preference in operation of the facility shall be given to a person who is blind or visually impaired.

Added 1983, No. 221 (Adj. Sess.), § 2; amended 2013, No. 96 (Adj. Sess.), § 135.

History

Revision note. In the first sentence, substituted "July 1, 1984" for "the date of enactment of this subchapter" for purposes of clarity.

Amendments--2013 (Adj. Sess.). Catchline: Substituted "a person who is blind or visually impaired" for "blind or visually impaired person".

Substituted "persons who are blind or visually impaired" for "blind or visually impaired persons" following "other than", "person who is blind or visually impaired" for "blind and visually impaired person" following "operation by a" and "person who is blind or visually impaired" for "blind or visually impaired person" at the end.

§ 506. Exemptions.

The following are exempt from the provisions of this subchapter:

  1. food services or vending machines provided by hospitals or residential institutions as a direct service to patients, inmates, students or otherwise institutionalized persons; and
  2. State property not under the control of the Department of Buildings and General Services.

    Added 1983, No. 221 (Adj. Sess.), § 2; amended 1995, No. 148 (Adj. Sess.), § 4(c)(1).

History

Amendments--1995 (Adj. Sess.) Subdiv. (2): Substituted "Department of Buildings and General Services" for "department of state buildings".

Subchapter 10. Whistleblower Protection

§ 507. Whistleblower protection; health care employees; prohibitions; hearing; notice.

  1. For the purposes of this subchapter:
    1. The "American Nurses Credentialing Center (ANCC)" means the national organization that developed the Magnet Recognition Program. The Magnet Recognition Program recognizes excellence in nursing services and is based on quality indicators and standards of nursing practice as defined in the American Nurses Association's Scope and Standards for Nurse Administrators. The ANCC has the authority to designate "Magnet" status to hospitals that have demonstrated their current and ongoing commitment to excellence in nursing practice.
    2. "Employee" means any person who performs services for wages or other remuneration under the control and direction of any public or private employer.
    3. "Employer" means:
      1. a hospital as defined in 18 V.S.A. § 1902(1) ; or
      2. a nursing home as defined in 33 V.S.A. § 7102(7) .
    4. "Improper quality of patient care" means any practice, procedure, action, or failure to act of an employee or employer that violates any provisions of the Nurse Practice Act, codes of ethics, hospital policies, or any other established standards of care related to public or patient health or safety.
    5. "Law" means any law, rule, or regulation duly enacted or adopted by this State, a political subdivision of this State, or the United States.
    6. "Public body" means:
      1. the United States Congress, any State legislature, or any popularly elected local government body, or any member or employee thereof;
      2. any federal, State, or local judiciary, or any member or employee thereof, or any jury;
      3. any federal, State, or local regulatory, administrative, or public agency or authority, or instrumentality thereof;
      4. any federal, State, or local law enforcement agency, prosecutorial office, or police or peace officer; or
      5. any division, board, bureau, office, committee, or commission of any of the public bodies described in this subdivision.
    7. "Retaliatory action" means discharge, threat, suspension, demotion, denial of promotion, discrimination, or other adverse employment action regarding the employee's compensation, terms, conditions, location, or privileges of employment.
    8. "Supervisor" means any person who has the authority to direct and control the work performance of an employee.
  2. No employer shall take retaliatory action against any employee because the employee does any of the following:
    1. Discloses or threatens to disclose to any person or entity any activity, policy, practice, procedure, action, or failure to act of the employer or agent of the employer that the employee reasonably believes is a violation of any law or that the employee reasonably believes constitutes improper quality of patient care.
    2. Provides information to, or testifies before, any public body conducting an investigation, a hearing, or an inquiry that involves allegations that the employer has violated any law or has engaged in behavior constituting improper quality of patient care.
    3. Objects to or refuses to participate in any activity, policy, or practice of the employer or agent that the employee reasonably believes is in violation of a law or constitutes improper quality of patient care.
  3. Subdivisions (b)(1) and (3) of this section shall not apply unless an employee first reports the alleged violation of law or improper quality of patient care to the employer, supervisor, or other person designated by the employer to address reports by employees of improper quality of patient care, and the employer has had a reasonable opportunity to address the violation. The employer shall address the violation under its compliance plan, if one exists. The employee shall not be required to make a report under this subsection if the employee reasonably believes that doing so would be futile because making the report would not result in appropriate action to address the violation.
  4. Nothing in this subchapter shall be deemed to diminish the rights, privileges, or remedies of any employee under any law or under any collective bargaining agreement or employment contract.

    Added 2003, No. 134 (Adj. Sess.), § 2.

History

Reference in text. The Nurse Practice Act, referred to in subdiv. (a)(4), is codified as 42 C.F.R. § 440.70.

2016. In subdiv. (a)(3)(A), substituted "18 V.S.A. § 1902(1)" for "subdivision 1902(1) of Title 18" to conform reference to V.S.A. style.

Revision note - In subdiv. (a)(3)(B), substituted "33 V.S.A. § 7102(7)" for "subdivision 7102(7) of Title 33" to conform reference to V.S.A. style.

ANNOTATIONS

Analysis

1. Violation not found.

On the former employee's claim that the former employer terminated his employment in retaliation for his complaints about improper patient care practices, in violation of Vermont's Healthcare Whistleblower Protection Act, 21 V.S.A. § 507, the employer articulated a legitimate, nondiscriminatory reason for the employee's termination because the employer cited evidence that surgical volume was declining, that various cost-saving measures were implemented which did not involve the employee, and that the employee's position was eliminated as part of the employer's effort to reduce costs in the peri-operative area in the face of declining surgical volume. Green v. Springfield Med. Care Sys., - F. Supp. 2d - (D. Vt. June 24, 2014).

When an employee claimed that she had been terminated for "whistle-blowing," there was ample support in the record for the conclusion that her termination was caused by her insubordination, and not by her engaging in protected activities. The trial court found that she: (1) had multiple confrontations with her supervisors over the management hierarchy, (2) acted without regard to that hierarchy in several instances, (3) confronted a coworker about her supposed underqualification despite having no supervisory authority over the coworker, (4) failed to keep up with her original responsibilities, and (5) refused to invite or notify her supervisor to attend certain meetings in which the supervisor had expressed an interest. Griffis v. Cedar Hill Health Care Corp., 185 Vt. 74, 967 A.2d 1141 (2008).

2. Evidence.

In a case alleging that an employee's termination was in retaliation for "whistle-blowing," the trial court properly excluded evidence as irrelevant when it appeared to have been largely about events that occurred outside of the employee's tenure with the employer. Even if the excluded evidence were relevant, its exclusion would not be grounds for reversal unless the employee had demonstrated that its exclusion likely affected the outcome of the case, and she had made no such showing. Griffis v. Cedar Hill Health Care Corp., 185 Vt. 74, 967 A.2d 1141 (2008).

§ 508. Enforcement.

  1. An employee aggrieved by a violation of this subdivision may:
    1. utilize any available internal process, grievance procedure, or similar process available to the employee to maintain or restore any loss of employment rights with the employer; or
    2. bring an action in the Superior Court of the county in which the violation is alleged to have occurred.
  2. The initiation or completion of an internal process, grievance procedure, or similar process under subdivision (a)(1) of this section shall not be a condition precedent to bringing an action in Superior Court under subdivision (a)(2) of this section.
  3. No later than July 1, 2005, all hospitals as defined in 18 V.S.A. § 1902(1) shall revise their internal processes referred to in subdivision (a)(1) to include and be consistent with ANCC Magnet Recognition Program standards that support the improvement of quality patient care and professional nursing practice.
  4. If the court finds that the employer has violated subsection 507(b) of this title, the court shall order, as appropriate:
    1. reinstatement of the employee, including employment benefits, seniority, and same or equivalent position, shift schedule, or hours worked as the employee had before the retaliatory action;
    2. payment of back pay, lost wages, benefits, and other remuneration;
    3. any appropriate injunctive relief;
    4. compensatory damages;
    5. punitive damages;
    6. attorney's fees; or
    7. any other appropriate relief.

      Added 2003, No. 134 (Adj. Sess.), § 2.

History

2016. In subsec. (c), substituted "18 V.S.A. § 1902(1)" for "subdivision 1902(1) of Title 18" to conform reference to V.S.A. style.

§ 509. Notice.

  1. No later than December 1, 2004, the Commissioner of Labor shall develop and distribute to each employer a standard notice as provided in this section. Each notice shall be in clear and understandable language and shall include:
    1. a summary of this subchapter;
    2. that an employee, in order to receive the protections of this subchapter, must report, pursuant to subsection 507(c) of this title, to the employer, to the supervisor, or to the person designated to receive notifications; and
    3. a space for the name, title, and contact information of the person to whom the employee must make a report under subsection 507(c) of this title.
  2. No later than January 1, 2005, each employer shall post the notice in the employer's place of business to inform the employees of their protections and obligations under this subchapter. The employer shall post the notice in a prominent and accessible location in the workplace. The employer shall indicate on the notice the name or title of the individual the employer has designated to receive notifications pursuant to subsection 507(c) of this title.
  3. An employer who violates this section by not posting the notice as required is liable for a civil fine of $100.00 for each day of willful violation.

    Added 2003, No. 134 (Adj. Sess.), § 2; amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Amendments--2005 (Adj. Sess.) Subsec. (a): Substituted "Commissioner of Labor" for "commissioner of labor and industry" in the first sentence of the introductory paragraph.

Subchapter 11. Drug Testing

Cross References

Cross references. Polygraph examination, see § 494 et seq. of this title.

History

Law review commentaries

Law review. For note, "Jar Wars in the Green Mountain State: Vermont's Drug Use Testing Act Has the Potential To Be the Best in the Nation", see Vt. L. Rev. 593 (1989).

§ 511. Definitions.

As used in this subchapter:

  1. "Applicant for employment" means an individual seeking or being sought for employment with an employer.
  2. "Designated laboratory" means a laboratory designated by the Department of Health under section 518 of this title.
  3. "Drug" means a drug listed or classified by the U.S. Drug Enforcement Administration as a Schedule I drug, or its metabolites, and alcohol.  It shall also mean other drugs or their metabolites which are likely to cause impairment of the individual on the job, which are: amitriptyline, amphetamines, barbiturates, benzodiazepines, cannabinoids, cocaine, doxepin, glutethimide, hydromorphone, imipramine, meperidine, methadone, methaqualone, opiates, oxycodone, pentazocine, phenytoin, phencyclidine, phenothiazines, and propoxyphene. In addition, the Commissioner of Health may, pursuant to 3 V.S.A. chapter 25, add drugs to this list not recognized as being commonly abused and likely to cause impairment of the employee on the job as of May 22, 1987.
  4. "Drug test" means the procedure of taking and analyzing body fluids or materials from the body for the purpose of detecting the presence of a regulated drug as defined in 18 V.S.A. chapter 84 or a drug as defined in subdivision (3) of this section.
  5. "Employee" means any person who may be permitted, required, or directed by any employer, in consideration of direct or indirect gain or profit, to perform services.
  6. "Employer" means any individual, organization, or governmental body, including partnership, association, trustee, estate, corporation, joint stock company, insurance company, or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee, or successor thereof, and any common carrier by mail, motor, water, air, or express company doing business in or operating within this State, which has one or more individuals performing services for it within this State, or which has offered or may offer employment to one or more individuals.
  7. "Employment agency" means a person who undertakes, with or without compensation, to procure, refer, recruit, or place for an employer or person, the opportunity to work for an employer.
  8. "Collector" means an individual certified by a U.S. Health and Human Services approved collector certification program for each type of specimen to be collected. A "collector" shall be recertified every three years and may not be an employee of the employer for the purposes of performing a drug test based on probable cause.

    Added 1987, No. 61 , § 1, eff. Sept. 1, 1987; amended 2001, No. 92 (Adj. Sess.), § 1, eff. May 1, 2002.

History

Reference in text. The U.S. Drug Enforcement Administration, referred to in subdiv. (3), is codified as 21 U.S.C. § 801 et seq. See also 21 C.F.R. Part 1300 et seq.

2016. In subdiv. (3), substituted "as of May 22, 1987" for "at the time of the passage of this act" to reflect the date of passage of 1987, No. 61 , which added this section.

2007. In subdivision (4), changed cross reference to "subdivision (3) of this section".

Amendments--2001 (Adj. Sess.) Subdivision (8): Added.

§ 512. Drug testing of applicants; prohibitions; exceptions.

  1. General prohibition.  Except as provided in subsection (b) of this section, an employer or an employment agency shall not, as a condition of employment, do any of the following:
    1. request or require that an applicant for employment take or submit to a drug test;
    2. administer or attempt to administer a drug test to an applicant for employment; or
    3. request or require that an applicant for employment consent, directly or indirectly, to a practice prohibited under this subchapter.
  2. Exception.  An employer may require an applicant for employment to submit to a drug test only if all of the following conditions are met:
    1. Conditional offer of employment.  The applicant has been given an offer of employment conditioned on the applicant receiving a negative test result.
    2. Notice.  The applicant received written notice of the drug testing procedure and a list of the drugs to be tested. The notice shall also state that therapeutic levels of medically-prescribed drugs tested will not be reported. The notice required under this subdivision may not be waived by the applicant.
    3. Administration.  The drug test is administered in accordance with section 514 of this title.

      Added 1987, No. 61 , § 1, eff. Sept. 1, 1987; amended 2001, No. 92 (Adj. Sess.), § 2, eff. May 1, 2002.

History

Amendments--2001 (Adj. Sess.) Subdiv. (b)(1): Deleted the second sentence.

Subdiv. (b)(2): Amended generally.

Subdiv. (b)(3): Deleted.

Subdiv. (b)(4): Redesignated as existing subdiv. (b)(3).

§ 513. Drug testing of employees; prohibitions; exceptions.

  1. General prohibition.  Except as provided in subsection (c) of this section, an employer shall not, as a condition of employment, promotion, or change of status of employment, or as an expressed or implied condition of a benefit or privilege of employment, do any of the following:
    1. request or require that an employee take or submit to a drug test;
    2. administer or attempt to administer a drug test to an employee; or
    3. request or require that an employee consent, directly or indirectly, to a practice prohibited under this subchapter.
  2. Random or company-wide tests.  An employer shall not request, require, or conduct random or company-wide drug tests except when such testing is required by federal law or regulation.
  3. Exception.  Notwithstanding the prohibition in subsection (a) of this section, an employer may require an individual employee to submit to a drug test if all the following conditions are met:
    1. Probable cause.  The employer or an agent of the employer has probable cause to believe the employee is using or is under the influence of a drug on the job.
    2. Employee assistance program.  The employer has available for the employee tested a bona fide rehabilitation program for alcohol or drug abuse and such program is provided by the employer or is available to the extent provided by a policy of health insurance or under contract by a nonprofit hospital service corporation.
    3. Employee may not be terminated.  The employee may not be terminated if the test result is positive and the employee agrees to participate in and then successfully completes the employee assistance program; however, the employee may be suspended only for the period of time necessary to complete the program, but in no event longer than three months.  The employee may be terminated if, after completion of an employee assistance program, the employer subsequently administers a drug test in compliance with subdivisions (1) and (4) of this subsection and the test result is positive.
    4. Administration of test.  The drug test is administered in accordance with section 514 of this title.

      Added 1987, No. 61 , § 1, eff. Sept. 1, 1987.

§ 514. Administration of tests.

An employer may request an applicant for employment or an employee to submit to a drug test pursuant to this subchapter, provided the drug testing is performed in compliance with all the following requirements:

  1. Drugs to be tested.  The test shall be administered only to detect the presence of alcohol or drugs, as defined in subdivision 511(3) of this title, at nontherapeutic levels.
  2. Written policy.  The employer shall provide all persons tested with a written policy that identifies the circumstances under which persons may be required to submit to drug tests, the particular test procedures, the drugs that will be screened, a statement that over-the-counter medications and other substances may result in a positive test and the consequences of a positive test result.  The employer's policy shall incorporate all provisions of this section.
  3. Blood samples.  An employer may not request or require that a blood sample be drawn for the purpose of administering a drug test.
  4. Designated laboratory.  The employer shall use only a laboratory designated by the Department of Health.
  5. Chain of custody.  The collector shall establish a chain of custody procedure for both sample collection and testing that will assure the anonymity of the individual being tested and verify the identity of each sample and test result.
  6. Urinalysis procedure.  If a urinalysis procedure is used to screen for drugs, the employer shall:
    1. require the laboratory performing the test to confirm any sample that tests positive by testing the sample by gas chromatography with mass spectrometry or an equivalent scientifically accepted method that provides quantitative data about the detected drug or drug metabolites; and
    2. provide the person tested with an opportunity, at his or her request and expense, to have a blood sample drawn at the time the urine sample is provided, and preserved in such a way that it can be tested later for the presence of drugs.
  7. Laboratory reports.  A laboratory may report that a urine sample is positive only if both the initial test and confirmation test are positive for the particular drug. Test results shall only be provided by written report in accordance with subdivision (9) of this section.
  8. Negative test results.  The detection of a drug at a therapeutic level as defined by the Commissioner of Health shall be reported as a negative test result.  The laboratory's report shall not contain any information indicating the presence of a drug at a therapeutic level as defined by the Commissioner.
  9. Information to be supplied.  The laboratory shall provide the medical review officer with a written report of the drug test result. The medical review officer shall review the report, and discuss the results and options available with the individual tested. The written report shall include all of the following information:
    1. the unique identifier code of the person tested;
    2. the type of test conducted for both initial screening and confirmation;
    3. the results of each test;
    4. the detection level, meaning the cut-off or measure used to distinguish positive and negative samples, on both the initial screening and confirmation procedures;
    5. the name and address of the laboratory; and
    6. any other information provided by the laboratory concerning that person's test.
  10. Preservation of samples.  The collector shall ensure that a portion of any positive sample is preserved in a condition that will permit accurate retesting for a period of not less than 90 days after the person tested receives the result.
  11. Medical review officer.  The employer shall contract with or employ a certified medical review officer who shall be a licensed physician with knowledge of the medical use of prescription drugs and the pharmacology and toxicology of illicit drugs. The medical review officer shall review and evaluate all drug test results, assure compliance with this section and sections 515 and 516 of this title, report the results of all tests to the individual tested, and report only confirmed drug test results to the employer.
  12. Collector.  The employer shall designate a collector to collect specimens from job applicants and employees. The collector may be an employee for the purposes of collecting specimens from job applicants. The collector may not be an employee for the purposes of collecting specimens from employees for drug testing based on probable cause.

    Added 1987, No. 61 , § 1, eff. Sept. 1, 1987; amended 2001, No. 92 (Adj. Sess.), § 3, eff. May 1, 2002.

History

Amendments--2001 (Adj. Sess.) Section amended generally and subdivs. (11) and (12) added.

Cross References

Cross references. Therapeutic use of cannabis generally, see 18 V.S.A. § 4471.

§ 515. Positive test results; opportunity to retest.

  1. A medical review officer shall contact personally an employee or applicant who has a positive test result and explain the results and why the results may not be accurate.
  2. The medical review officer shall provide any applicant or employee who has a positive test result with an opportunity to retest a portion of the sample at an independent laboratory at the expense of the person tested and shall consider the results of the retest.

    Added 1987, No. 61 , § 1, eff. Sept. 1, 1987; amended 2001, No. 92 (Adj. Sess.), § 4, eff. May 1, 2002.

History

Amendments--2001 (Adj. Sess.) Subsec. (a): Amended generally.

Subsec. (b): Substituted "medical review officer" for "employer".

§ 516. Confidentiality.

  1. Any health care information about an individual to be tested shall be collected only by a medical review officer. This information shall be confidential and shall not be released to anyone except the individual tested, and may not be obtained by court order or process, except as provided in this subchapter. In addition, a medical review officer shall not reveal the identity of an individual being tested to any person, including the laboratory.
  2. Employers, medical review officers, laboratories, and the agents of any of these, who receive or have access to information about drug test results, shall keep all information confidential. Release of such information under any other circumstance shall be solely pursuant to a written consent form signed voluntarily by the person tested, except where such release is compelled by a court of competent jurisdiction in connection with an action brought under this subchapter.
  3. If information about drug test results is released contrary to the provisions of this subchapter, it shall be inadmissible as evidence in any judicial or quasi-judicial proceeding, except in a court of competent jurisdiction in connection with an action brought under this subchapter.

    Added 1987, No. 61 , § 1, eff. Sept. 1, 1987; amended 2001, No. 92 (Adj. Sess.), § 5, eff. May 1, 2002; 2015, No. 23 , § 12.

History

Amendments--2015. Subsec. (a): Amended generally.

Subsec. (b): Substituted "the agents of any of these" for "their agents" preceding "who receive" in the first sentence and deleted the last sentence.

Amendments--2001 (Adj. Sess.) Subsec. (a): Substituted "health care information about an individual to be tested shall be taken only by a medical review officer and" for "information concerning drug test results taken by an employer pursuant to authority under this subchapter", "individual tested" for "employer, applicant or employee, as the case may be", and "subchapter" for "section".

Subsec. (b): Inserted "medical review officers" following "employers" at the beginning of the first sentence and added the last sentence.

§ 517. Employer's authority.

This subchapter shall not restrict an employer's authority to prohibit the nonprescribed use of drugs or alcohol during work hours, or restrict an employer's authority to discipline, suspend, or dismiss an employee for being under the influence of drugs or alcohol during work hours, except as that authority is restricted under subsection 513(c)(3) of this title in reference to participation in an employee assistance program or suspension.

Added 1987, No. 61 , § 1, eff. Sept. 1, 1987.

§ 518. Designated laboratory; rule making authority of the Commissioner.

  1. The Department of Health shall designate laboratories to test body fluids or materials for drugs.  Such laboratories must be able to document competency in regard to personnel, quality assurance programs, methodology and equipment, on site confirmation of positive screening tests, security, confidentiality, and expert testimony.
  2. A laboratory that fails to comply with the provisions of this subchapter relating to the confirmation and reporting of test information and the release of confidential information shall lose its designation under this subsection.
  3. The Commissioner of Health shall adopt rules pursuant to 3 V.S.A. chapter 25 establishing nontherapeutic levels of therapeutic drugs by establishing a range of values considering average medical use for each particular drug or metabolite authorized to be tested under this subchapter.

    Added 1987, No. 61 .

History

2016. In subsec. (c), substituted "3 V.S.A. chapter 25" for "chapter 25 of Title 3" to conform reference to V.S.A. style.

Effective date. 1987, No. 61 , § 2 provided that subsec. (a) of this section was to take effect on May 22, 1987 and that subsecs. (b) and (c) of this section were to take effect on Sept. 1, 1987.

§ 519. Enforcement.

  1. Private right of action.  An applicant or employee aggrieved by a violation of this subchapter may bring a civil action for injunctive relief, damages, court costs, and attorney's fees.
  2. Burden of proof.  In a private right of action alleging that an employer has violated this subchapter, the employer has the burden of proving that the requirements of sections 513, 514, and 516 of this title have been satisfied.  In any civil action alleging that a laboratory has violated the reporting or confidentiality sections of this subchapter, the laboratory shall have the burden of proving that the requirements of sections 514 and 516 of this title have been satisfied.
  3. State action to obtain civil penalty.  A person who violates any provision of this subchapter shall be subject to a civil penalty of not less than $500.00 nor more than $2,000.00.
  4. State action to obtain criminal penalty.  A person who knowingly violates any provision of this subchapter shall be fined not less than $500.00 nor more than $1,000.00 or shall be imprisoned not more than six months, or both.

    Added 1987, No. 61 , § 1, eff. Sept. 1, 1987.

§ 520. Repealed. 2017, No. 74, § 142.

History

Former § 520. Former § 520, relating to transitory provisions; drug testing, was derived from 1987, No. 61 .

Subchapter 12. Health Coverage Status

§ 561. Health coverage status discrimination prohibited.

  1. For the purposes of this section:
    1. "Employee" shall have the same meaning as in section 2002 of this title.
    2. "Employer" shall have the same meaning as in section 2002 of this title.
    1. No employer or employment agency or agent of either shall inquire about the health coverage status of a job applicant or in any way discriminate among applicants or employees on the basis of health coverage status. (b) (1)  No employer or employment agency or agent of either shall inquire about the health coverage status of a job applicant or in any way discriminate among applicants or employees on the basis of health coverage status.
    2. Nothing in this section shall prevent:
      1. an employer, employment agency, or agent from informing an applicant about the employer's health coverage benefits; or
      2. an employer from inquiring about the health coverage status of an employee to enable the employer to determine the number of uncovered employees pursuant to chapter 25 of this title, provided that the inquiry conforms to the employer obligations in chapter 25 of this title.
  2. Any person aggrieved by a violation of the provisions of this subchapter may bring an action in Superior Court seeking compensatory and punitive damages or equitable relief, including restraint of prohibited acts, restitution of wages or other benefits, reinstatement, costs, reasonable attorney's fees, and other appropriate relief.

    Added 2007, No. 70 , § 28.

CHAPTER 7. MEDIATION AND ARBITRATION

Sec.

§§ 501-513a. Repealed. 1973, No. 213 (Adj. Sess.), § 3, eff. April 3, 1974.

History

Former §§ 501-513a. The subject matter of former §§ 501-513a is now covered by § 521 et seq. of this title.

Former § 501, relating to definitions, was derived from V.S. 1947, § 8209; 1939, No. 186 , § 1.

Former § 502, relating to notice of threatened strike or lockout, was derived from V.S. 1947, § 8210; 1939, No. 186 , § 2 and amended by 1959, No. 214 , § 1; 1967, No. 198 , § 19.

Former § 503, relating to investigation and reports to Governor, was derived from V.S. 1947, § 8211; 1939, No. 186 , § 3 and amended by 1959, No. 214 , § 2; 1967, No. 198 , § 20.

Former § 504, relating to mediation by Governor and consent to arbitration, was derived from V.S. 1947, § 8212; 1939, No. 186 , § 4 and amended by 1967, No. 198 , § 21.

Former § 505, relating relative to Board of Arbitration, was derived from V.S. 1947, § 8213; 1939, No. 186 , § 5 and amended by 1967, No. 198 , § 22.

Former § 506, relating to agreement to arbitrate and binding awards, was derived from V.S. 1947, § 8214; 1939, No. 186 , § 6.

Former § 507, relating to Board hearings, was derived from V.S. 1947, § 8215; 1939, No. 186 , § 7.

Former § 508, relating to witnesses, record books and fees, was derived from V.S. 1947, § 8216; 1939, No. 186 , § 8.

Former § 509, relating to findings, award and report to Governor, was derived from V.S. 1947, § 8217; 1939, No. 186 , § 9 and amended by 1967, No. 198 , § 23.

Former § 510, relating to binding effect of an award, was derived from V.S. 1947, § 8218; 1939, No. 186 , § 10 and amended by 1967, No. 198 , § 24.

Former § 511, relating to appointment and duties of experts, was derived from V.S. 1947, § 8219; 1939, No 186 § 11.

Former § 512, relating to compensation of experts and assistants, was derived from V.S. 1947, § 8220; 1939, No. 186 , § 12 and amended by 1967, No. 198 , § 25.

Former § 513, relating to appropriation by Emergency Board, was derived from V.S. 1947, § 8221; 1939, No. 186 , § 13 and previously repealed by 1967, No. 198 , § 26.

Former § 513a, relating to Labor Emergency Board, was added by 1967, No. 198 , § 27.

CHAPTER 8. LABOR MEDIATION AND ARBITRATION

History

Amendments--1985. 1985, No. 95 , § 1, inserted "Labor" preceding "Mediation" in the chapter heading.

Cross References

Cross references. Arbitration generally, see 12 V.S.A. § 5651 et seq.

Labor relations for teachers, see 16 V.S.A. § 1981 et seq.

Municipal Labor Relations Act, see § 1721 et seq. of this title.

State Employees Labor Relations Act, see 3 V.S.A. § 901 et seq.

Vermont State Labor Relations Act, see § 1501 et seq. of this title.

Subchapter 1. General Provisions

§§ 521-526. Repealed. 1995, No. 188 (Adj. Sess.), § 4.

History

Former §§ 521-526. Former §§ 521-526, relating to labor mediation and arbitration, were derived from 1973, No. 213 (Adj. Sess.), § 1.

Subchapter 2. Conciliation Procedure

§§ 531, 532. Repealed. 1995, No. 188 (Adj. Sess.), § 4.

History

Former §§ 531, 532. Former §§ 531, 532, relating to conciliation procedure, was derived from 1973, No. 213 (Adj. Sess.), § 1.

Subchapter 3. Arbitration by Mutual Consent

§§ 541-543. Repealed. 1995, No. 188 (Adj. Sess.), § 4.

History

Former §§ 541-543. Former §§ 541-543, relating to arbitration by mutual consent, were derived from 1973, No. 213 (Adj. Sess.), § 1.

Subchapter 4. Labor Inquiry

§§ 551-554. Repealed. 1995, No. 188 (Adj. Sess.), § 4.

History

Former §§ 551-554. Former §§ 551-554, relating to the process of labor inquiry, were derived from 1973, No. 213 (Adj. Sess.), § 1.

CHAPTER 9. EMPLOYER'S LIABILITY AND WORKERS' COMPENSATION

Sec.

History

Amendments--1981 (Adj. Sess.). 1981 No. 165 (Adj. Sess.), § 2, substituted "Workers" for "Workmen's" in the chapter heading.

Severability of enactment. V.S. 1947, § 8163, provided: "If any portion of this chapter is held unconstitutional or invalid, such holding shall not affect the validity of the chapter as a whole, or any part thereof which can be given effect without the part so held to be unconstitutional or invalid."

General amendment. 1981, No. 165 (Adj. Sess.), § 1, provided: "Each section of Vermont Statutes Annotated where the word 'workman', 'workmen' or 'workmen's compensation' appears is amended by striking those words and inserting in lieu thereof the words 'worker', 'workers', and 'workers' compensation', respectively."

Legislative purpose. 2005, No. 108 (Adj. Sess.), § 1 provides: "The sole purpose of this act [which amends section 601 of this title], is to include all firefighters, not just professional firefighters, under the presumption that a heart disease or heart injury that becomes symptomatic within 72 hours of service in the line of duty is a compensable injury under the workers' compensation laws."

Legislative findings and purpose. 2007, No. 208 (Adj. Sess.), § 1 provides: "(a) The General Assembly finds the following:

"(1) The workers' compensation program was established in 1915 to dispense with the concept of negligence by providing compensation to any employee who is injured on the job and to limit employers' exposure to lawsuits for negligence in the workplace. In addition, this program removed the need for injured employees to rely on tax-funded public assistance programs.

"(2) The National Council on Compensation Insurance, NCCI, the nation's largest provider of workers' compensation and employee injury data, recommends to the Vermont department of banking, insurance, securities, and health care administration proposed workers' compensation voluntary market loss costs and assigned risk market rates by classification codes.

"(3) In March 2008, the department of banking, insurance, securities, and health care administration approved an average 4.2 percent decrease in both the voluntary market loss costs and assigned risk market rates, representing the largest decrease in a decade. This decrease provided many Vermont employers, including sawmill, logging, and carpentry operations, hospitals, restaurants, and ski areas, with a modest decrease in their workers' compensation premiums. Other Vermont employers with good safety records may enjoy even higher premium rate reductions.

"(4) The decrease is attributed mainly to a decline in workplace injuries. Two major cost drivers of workers' compensation premiums are the frequency of claims and the seriousness of claims. Another cost driver is medical costs which are increasing more rapidly than the rate of inflation. The duration of claims also adds to workers' compensation costs.

"(5) Despite recent stability in workers' compensation rates, the comparatively high cost of workers' compensation insurance in Vermont remains an issue of great concern to many Vermont employers.

"(6) The increased implementation of safety training programs and measures by Vermont employers has reduced the frequency of workplace injuries, which is the most effective way to reduce workers' compensation costs.

"(7) The fact that only 8.5 percent of the Vermont employers are in the residual market validates that workers' compensation insurers perceive that the Vermont workers' compensation program is working effectively. The residual market is less than half the size it was five years ago, indicating that many employers have found appropriate coverage in the voluntary market, in which employers can benefit from competition between carriers. The lack of competition among carriers for certain industries such as dairy farming presents a disadvantage for those industries.

"(8) Workers' compensation premiums for farmers are increasing while premiums for most other employer categories are going down. Farming is inherently more hazardous than many other industries, and the pool of farmers to spread the risk is small. Agricultural workers have a higher frequency and suffer more serious work injuries than other workers, particularly those working on farms with hoofed animals.

"(9) It is important to provide incentives to improve farm safety through comprehensive training programs. Extensive outreach and safety education will go a long way toward reducing workers' compensation premium rates for farmers. The Vermont farm bureau, the agency of agriculture, food and markets, the U.S. Department of Agriculture, the University of Vermont extension service, and other organizations are working to develop enhanced farm safety training programs.

"(10) A significant number of employers are improperly classifying employees as "independent contractors" either due to a lack of understanding or knowingly to avoid legal obligations under federal and state labor and tax laws governing payment of wages, unemployment insurance, workers' compensation, and income and social security taxation.

"(11) Misclassification of employees as 'independent contractors' adversely impacts the Vermont economy because it deprives workers of legal protections and benefits; reduces compliance with employment and safety standards; gives employers who misclassify an improper financial competitive advantage over law-abiding businesses; deprives the state of substantial revenue; and imposes indirect costs from decreased legitimate business activity and increased demand for social services. A recent survey of workers' compensation insurers conducted in compliance with No. 57 of the Acts of 2007 reveals that misclassification is a significant problem that may add 10 to 20 percent or more to the cost of workers' compensation.

"(12) Historically, compliance and enforcement have been divided among various governmental entities, which reduce efficiency and effectiveness. Improved cooperation, sharing information, and joint enforcement of serious violations would be effective approaches to reducing employer misclassification.

"(13) While a reduction in workers' compensation benefits would lower workers' compensation premiums across all class codes, this reduction would be at the expense of injured workers and provide little incentive for improving safety.

"(14) Significant delays in scheduling a hearing and issuing a decision after formal hearing in contested workers' compensation cases have an adverse impact on injured workers, who are often without necessary medical benefits or income for up to two years; on health care providers, who do not receive timely payment of medical bills; and on insurers, who must maintain reserves on open and unresolved claims.

"(b) Therefore, it is the purpose of this act to address the problems of employee misclassification and miscoding, improve farm safety, and make other positive changes to the workers' compensation laws that are intended to improve the efficiency of dispute resolution and reduce the cost of workers' compensation."

Department of Labor; employee misclassification reporting system. 2009, No. 142 (Adj. Sess.), § 7, effective June 1, 2010 provides: "The department of labor shall create and maintain an online employee misclassification reporting system. The system shall be designed to allow individuals to report suspected cases of employee misclassification, failure to have appropriate insurance coverage, and claimant fraud to the department to ensure that this information is distributed to appropriate departments and agencies. The department shall keep the name of the complainant confidential."

Workers' compensation; administrative flexibility; temporary authority. 2019, No. 150 (Adj. Sess.), § 1 provides: "(a) In order to effectuate the remedial purpose of Vermont's Workers' Compensation law and to ensure that injured workers are able to obtain the workers' compensation benefits they are entitled to, the Commissioner shall, during a declared state of emergency related to COVID-19, have authority to issue guidance and adopt procedures to extend deadlines or temporarily amend or waive specific requirements of 21 V.S.A. chapter 9 and the rules adopted pursuant to that chapter.

"(b) Any guidance or procedures that are issued or adopted by the Commissioner pursuant to this section shall be effective during the state of emergency in which they are adopted, and the Commissioner shall establish a procedure to transition those claims impacted by the emergency to preexisting rules within 45 days after the termination of the state of emergency.

"(c) The Commissioner shall post any guidance issued or procedure adopted pursuant to this section on the Department's website and shall make reasonable efforts to provide prompt notice of the guidance or procedure to employers, attorneys, and employee organizations.

"(d) The Commissioner shall not be required to initiate rulemaking pursuant to 3 V.S.A. § 831(c) in relation to any guidance issued or procedure adopted pursuant to this section."

COVID-19; presumption of compensability. 2019 No. 150 (Adj. Sess.), § 2, as amended by 2021, No. 2 , §§ 2, 3, provides: "(a)(1) In the case of a front-line worker, disability or death resulting from COVID-19 shall be presumed to be compensable pursuant to 21 V.S.A. chapter 9, provided that the front-line worker receives a positive laboratory test for COVID-19 or a diagnosis of COVID-19 from a licensed healthcare provider between March 1, 2020 and the 30th day following the termination of the state of emergency declared in response to COVID-19 pursuant to Executive Order 01-20.

"(2) As used in this subsection:

"(A)(i) 'Elevated risk of exposure to COVID-19' means the performance of a job that requires the worker to have regular physical contact with known sources of COVID-19 or regular physical or close contact with patients, inmates in a correctional facility, residents of a residential care or long-term care facility, or members of the public in the course of his or her employment.

"(ii) As used in this subdivision (2)(A), 'close contact' means interactions with another individual that require the employee to be within six feet of that individual.

"(B) 'Front-line worker' means an individual with an elevated risk of exposure to COVID-19 who is employed as:

"(i) a firefighter as defined in 20 V.S.A. § 3151(3) and (4);

"(ii) a law enforcement officer who has been certified by the Vermont Criminal Justice Training Council pursuant to 20 V.S.A. chapter 151;

"(iii) emergency medical personnel and volunteer personnel as defined in 24 V.S.A. § 2651;

"(iv) a worker in a health care facility or in an institution or office where health care services are provided by licensed healthcare professionals;

"(v) a correctional officer;

"(vi) a worker in a long-term care facility or residential care facility;

"(vii) a childcare provider who is permitted to provide childcare to the children of other front-line workers pursuant to Executive Order 01-20;

"(viii) a home health care worker or personal care attendant;

"(ix) a worker in a morgue, funeral establishment, or crematory facility; and

"(x) a worker performing services that the Commissioner determines place the worker at a similarly elevated risk of being exposed to or contracting COVID-19 as the other occupations listed in this subsection (a).

"(b) For an employee who is not a front-line worker as defined in subdivision (a)(2)(B) of this section, disability or death resulting from COVID-19 shall be presumed to be compensable pursuant to 21 V.S.A. chapter 9 if the employee receives a positive laboratory test for COVID-19 or a diagnosis of COVID-19 from a licensed healthcare provider between April 1, 2020 and the 30th day following the termination of the state of emergency declared in response to COVID-19 pursuant to Executive Order 01-20 and, not more than 14 days prior to the date on which the employee is tested or examined, either:

"(1) had documented occupational exposure in the course of employment to an individual with COVID-19; or

"(2) performed services at a residence or facility with one or more residents or employees who:

"(A) were present at the time the services were performed; and either

"(B)(i) had COVID-19 at that time; or

"(ii) tested positive for COVID-19 within 14 days after the services were performed.

"(c)(1) The presumption of compensability in subsection (a) of this section shall not apply if it is shown by a preponderance of the evidence that the disease was caused by non-employment-connected risk factors or non-employment-connected exposure.

"(2) The presumption of compensability in subsection (b) of this section shall not apply if the employer can show by a preponderance of the evidence that:

"(A) the disease was caused by non-employment-connected risk factors or non-employment-connected exposure; or

"(B) at the time the employee was potentially exposed to COVID-19, the employee's place of employment was in compliance with:

"(i) between April 1, 2020 and April 20, 2020, the relevant COVID-19 related guidance for businesses and workplaces issued by the U.S. Centers for Disease Control and the Vermont Department of Health and any similar guidance issued by local or municipal authorities; and

"(ii) between April 20, 2020 and January 15, 2021, the Restart Vermont Worksafe Guidance issued by the Agency of Commerce and Community Development, and any similar guidance issued by local or municipal authorities.

"(d) The Commissioner shall not be required to initiate rulemaking pursuant to 3 V.S.A. § 831(c) in relation to any guidance issued or procedure adopted in relation to this section."

Prospective repeal of 2019, No. 150 (Adj. Sess.), §§ 1 and 2 notes. 2019, No. 150 (Adj. Sess.), § 3, as amended by 2021, No. 2 , § 4, provides: "In the absence of legislative action to the contrary, Secs. 1 and 2 of this act are repealed on the 30th day following the termination of the state of emergency declared in response to COVID-19 pursuant to Executive Order 01-20."

Retroactive applicability of 2019, No. 150 (Adj. Sess.), §§ 1 and 2 notes. 2019, No. 150 (Adj. Sess.), § 7(a) provides: "Notwithstanding 1 V.S.A. § 214, the section and Sec. 1 and 2 of this act shall take effect on passage and shall apply retroactively to March 1, 2020."

Retroactive applicability of 2021, No. 2 , §§ 2-4 notes. 2021, No. 2 , § 5 provides: "This act shall take effect on passage; except that notwithstanding 1 V.S.A. § 214, Secs. 2, 3, and 4 shall take effect retroactively on January 15, 2021."

Intent; workers' compensation; extension of COVID-19-related provisions. 2021, No. 2 , § 1 provides: "It is the intent of the General Assembly to continue uninterrupted from January 15, 2021 until 30 days after the termination of the state of emergency declared in response to COVID-19 pursuant to Executive Order 01-20:

"(1) the Commissioner of Labor's authority pursuant to 2020 Acts and Resolves No. 150, Sec. 1 to temporarily extend deadlines and amend or waive specific requirements of Vermont's workers' compensation laws during a state of emergency related to COVID-19; and

"(2) the provisions of 2020 Acts and Resolves No. 150, Sec. 2 establishing in certain circumstances a rebuttable presumption that a worker who is diagnosed with COVID-19 is entitled to benefits under Vermont's workers' compensation laws."

Cross References

Cross references. State Employees' Workers' Compensation Fund, see 29 V.S.A. § 1408.

Workers' compensation adjusters, see 8 V.S.A. § 4803.

Workers' compensation fraud, see 13 V.S.A. § 2024.

ANNOTATIONS

Analysis

1. Construction.

Although the statutory definition of "wages" in the Workers Compensation Act did not mention employer-paid health insurance premiums, as the statutory phrase "other advantages which can be estimated in money" was ambiguous and capable of more than one reasonable interpretation, it was proper to attempt to discern the Legislature's intent by other means and by looking to the legislative history. Lydy v. Trustaff, Inc., 194 Vt. 165, 76 A.3d 150 (2013).

As an employer's cost in providing health insurance measured neither the employee's benefit nor his compensation because the costs were not tied to the employee's labors but instead, were based on factors unconnected to the employee, the employer's contribution for health insurance, though determinable, did not accurately reflect the employee's labors or compensation as defined through wages for purposes of the Workers' Compensation Act. Lydy v. Trustaff, Inc., 194 Vt. 165, 76 A.3d 150 (2013).

As there was a split of authority with respect to whether fringe benefits were wages for the purpose of workers' compensation, and against the backdrop of Vermont Department of Labor's consistent interpretation of its own statute, other states' decisions were not compelling. Lydy v. Trustaff, Inc., 194 Vt. 165, 76 A.3d 150 (2013).

This chapter is remedial in nature and must be liberally construed to provide injured employees with benefits, unless the law is clear to the contrary. St. Paul Fire & Marine Insurance Co. v. Surdam, 156 Vt. 585, 595 A.2d 264 (1991).

This chapter provides injured workers with expeditious and certain payments for economic losses without proof of fault, and employers with limited liability. St. Paul Fire & Marine Insurance Co. v. Surdam, 156 Vt. 585, 595 A.2d 264 (1991).

This chapter, having benevolent objectives, is remedial in nature and must be given a liberal construction; no injured employee should be excluded unless the law clearly intends such an exclusion or termination of benefits. Montgomery v. Brinver Corp., 142 Vt. 461, 457 A.2d 644 (1983).

This chapter should be liberally construed to accomplish its humane purpose. Herbert v. Laymen, 125 Vt. 481, 218 A.2d 706 (1966), overruled on other grounds, Whitney v. Fisher (1980) 138 Vt. 468, 417 A.2d 934, cert. denied, 510 U.S. 947, 114 S. Ct. 388, 126 L. Ed. 2d 336 (1993).

This chapter is to be construed liberally to accomplish the humane purpose for which it was passed, but a liberal construction does not mean an unreasonable or unwarranted construction. Rothfarb v. Camp Awanee, Inc., 116 Vt. 172, 71 A.2d 569 (1950), overruled on other grounds, Shaw v. Dutton Berry Farm (1993) 160 Vt. 235, 632 A.2d 18.

This chapter is to be construed liberally to accomplish the humane purpose for which it was passed. Giguere v. E.B. & A.C. Whiting Co., 107 Vt. 151, 177 A. 313 (1935); Wilkins v. Blanchard-McDonald Lumber Co., 115 Vt. 89, 52 A.2d 781 (1947); Orvis v. Hutchins, 123 Vt. 18, 179 A.2d 470 (1962).

Although this chapter is to be liberally construed, supreme court cannot overlook the fact that the rights of employers as well as the rights of employees are safeguarded by it, that the rights of both are designed to be protected by it, and that the provisions of the law, as written, must be given force. Petraska v. National Acme Co., 95 Vt. 76, 113 A. 536 (1921).

This chapter, being remedial in character, is to be liberally construed to effectuate its manifest purpose. Packett v. Moretown Creamery Co., 91 Vt. 97, 99 A. 638 (1917).

2. Purpose .

Workers' compensation law represents a public policy compromise in which employee gives up right to sue employer in tort, in return for which employer assumes strict liability and obligation to provide a speedy and certain remedy for work-related injuries. Gerrish v. Savard, 169 Vt. 468, 739 A.2d 1195 (1999).

Purpose of this chapter is to preserve the employee's common-law action, subject only to the employer's or insurance carrier's subrogation for compensation previously awarded. St. Paul Fire & Marine Insurance Co. v. Surdam, 156 Vt. 585, 595 A.2d 264 (1991).

The purpose of this chapter is to provide, not only for the employees a remedy which is both expeditious and independent of proof of fault, but also for employers, a liability which is limited and determinate. Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 417 A.2d 926 (1980).

Although this chapter is to be construed liberally to accomplish the humane purpose for which it was passed, such construction must also be guided by the consideration that the purpose is to provide not only for the employee a remedy which is both expeditious and independent of proof of fault, but also, for employers, a liability which is limited and determinative. Quinn v. Pate, 124 Vt. 121, 197 A.2d 795 (1964).

The purpose of this chapter is to provide, not only for the employees a remedy which is both expeditious and independent of proof of fault, but also for employers a liability which is limited and determinate and it places on business the burden of caring for injured employees, or when killed, their dependents to the extent provided for herein. Morrisseau v. Legac, 123 Vt. 70, 181 A.2d 53 (1962).

The purpose of this chapter is to regulate relation of employer and employee as to compensation for injuries received by employee arising out of and in course of his employment. DeGray v. Miller Brothers Construction Co., 106 Vt. 259, 173 A. 556 (1934).

Purpose of this chapter is to preserve the employee's common-law action, subject only to the employer's or insurance carrier's subrogation for compensation previously awarded. St. Paul Fire & Marine Insurance Co. v. Surdam (1991) 156 Vt. 585, 595 A.2d 264.

3. Law governing.

The right to compensation for an injury under this chapter is governed by the law in force at the time of the occurrence of such injury. Montgomery v. Brinver Corp., 142 Vt. 461, 457 A.2d 644 (1983).

4. Jurisdiction.

Superior court had no jurisdiction to hear petition for declaratory judgment alleging that plaintiff was entitled to recover death benefits under this chapter where plaintiff failed to avail herself of the administrative remedy provided by this chapter. Demag v. American Insurance Cos., 146 Vt. 608, 508 A.2d 697 (1986).

The commissioner of labor and industry is given original jurisdiction to hear and determine controversies involving claims for workers' compensation. Norse v. Melsur Corp., 143 Vt. 241, 465 A.2d 275 (1983).

5. Amateur sports exclusion.

Lodging employee was not barred from receiving workers' compensation benefits for skiing injury, since Legislature intended to restrict "amateur sports exclusion" to sports involving an athletic competition, and employee's injury occurred during recreational skiing. Grather v. Gables Inn, Ltd., 170 Vt. 377, 751 A.2d 762 (2000).

§ 601. Definitions.

Unless the context otherwise requires, words and phrases used in this chapter shall be construed as follows:

  1. "Brother" and "sister" includes a stepbrother and stepsister, half-brother and half-sister, and a brother and sister by adoption, but does not include a married brother or a married sister unless dependent.
  2. "Child" includes a stepchild, adopted child, posthumous child, grandchild, and a child for whom parentage has been established pursuant to 15 V.S.A. chapter 5, but does not include a married child unless the child is a dependent.
  3. "Employer" includes any body of persons, corporate or unincorporated, public or private, and the legal representative of a deceased employer, and includes the owner or lessee of premises or other person who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor or for any other reason, is not the direct employer of the workers there employed. If the employer is insured, "employer" includes the employer's insurer so far as applicable. A person is not deemed to be an "employer" for the purposes of this chapter as the result of entering into a contract for services or labor with an individual who has knowingly and voluntarily waived coverage of this chapter pursuant to subdivision (14)(F) of this section.
  4. "Employment" includes public employment, and, in the case of private employers, includes all employment in any trade or occupation notwithstanding that an employer may be a nonprofit corporation, institution, association, partnership, or proprietorship.
  5. "Grandchild" includes a child of an adopted child and a child of a stepchild, but does not include a stepchild of a child, a stepchild of a stepchild, a stepchild of an adopted child, or a married grandchild unless dependent.
  6. "Grandparent" includes a parent of a parent by adoption, but does not include a parent of a stepparent, a stepparent of a parent, or a stepparent of a stepparent.
  7. "Injury" and "personal injury" includes occupational diseases, death resulting from injury within two years and includes injury to and cost of acquiring and replacement of prosthetic devices, hearing aids, and eye glasses.
  8. "Insurance carrier" includes any corporation from which an employer has obtained workers' compensation insurance or guaranty insurance in accordance with the provisions of this chapter.
  9. "Parent" includes a stepparent and a parent by adoption.
  10. "Partial disability" may be held to include diminished ability to obtain employment owing to disfigurement resulting from an injury.
  11. "Personal injury by accident arising out of and in the course of employment" includes an injury caused by the willful act of a third person directed against an employee because of that employment.
    1. In the case of constables, chiefs of police, police officers, rescue or ambulance workers, and volunteer reserve police officers in any city, town, or incorporated village, disability or death from a heart injury or heart disease incurred or aggravated and proximately caused by service in the line of duty and that becomes symptomatic within 72 hours from the date of last service in the line of duty shall be presumed to be incurred in the line of duty.
    2. In the case of firefighters, as defined in 20 V.S.A. § 3151(3) and (4), disability or death from heart injury or heart disease that becomes symptomatic within 72 hours of service in the line of duty shall be presumed to be compensable.
    3. "Line of duty," as applied to firefighters and rescue and ambulance workers means one or more of the following:

      (ii) Similar service in another town or district to which the department has been called for firefighting or emergency purposes.

      (iii) Service under orders of any department officer in any other emergency to which the department is called in the town or district where the department is established.

      (iv) Activities authorized by the department for the purpose of raising funds for the department.

    4. "Line of duty" as applied to constables, police officers, or volunteer reserve police officers means either or both of the following:
      1. Service as a police officer in answer to a complaint lodged with the department, including going to, returning from, and investigating the complaint or disorder.
      2. Service under orders from the department or in any emergency for which the employee serves as constable, police officer, or volunteer reserve police officer.
    5. In the case of a firefighter, as defined in 20 V.S.A. § 3151(3) and (4), who dies or has a disability from a cancer listed in subdivision (iii) of this subdivision (E), the firefighter shall be presumed to have had the cancer as a result of exposure to conditions in the line of duty, unless it is shown by a preponderance of the evidence that the cancer was caused by nonservice-connected risk factors or nonservice-connected exposure, provided:
        1. the firefighter completed an initial and any subsequent cancer screening evaluations as recommended by the American Cancer Society based on the age and sex of the firefighter prior to becoming a firefighter or within two years of July 1, 2007, and the evaluation indicated no evidence of cancer;
        2. the firefighter was engaged in firefighting duties or other hazardous activities over a period of at least five years in Vermont prior to the diagnosis; and
        3. the firefighter is under 65 years of age.
      1. The presumption shall not apply to any firefighter who has used tobacco products at any time within 10 years of the date of diagnosis.
      2. The disabling cancer shall be limited to leukemia, lymphoma, or multiple myeloma, and cancers originating in the bladder, brain, colon, gastrointestinal tract, kidney, liver, pancreas, skin, or testicles.
    6. A firefighter who is diagnosed with cancer within 10 years of the last active date of employment as a firefighter shall be eligible for benefits under this subdivision. The date of injury shall be the date of the last injurious exposure as a firefighter.
    7. It is recommended that fire departments maintain incident report records for at least 10 years.
      1. In the case of firefighters and members of a rescue or an ambulance squad, disability or death resulting from lung disease or an infectious disease either one of which is caused by aerosolized airborne infectious agents or blood-borne pathogens and acquired after a documented occupational exposure in the line of duty to a person with an illness shall be presumed to be compensable, unless it is shown by a preponderance of the evidence that the disease was caused by nonservice-connected risk factors or nonservice-connected exposure. The presumption of compensability shall not be available if the employer offers a vaccine that is refused by the firefighter or rescue or ambulance worker and the firefighter or rescue or ambulance worker is subsequently diagnosed with the particular disease for which the vaccine was offered, unless the firefighter or rescue or ambulance worker's physician deems that the vaccine is not medically safe or appropriate for the firefighter or rescue or ambulance worker. (H) (i)  In the case of firefighters and members of a rescue or an ambulance squad, disability or death resulting from lung disease or an infectious disease either one of which is caused by aerosolized airborne infectious agents or blood-borne pathogens and acquired after a documented occupational exposure in the line of duty to a person with an illness shall be presumed to be compensable, unless it is shown by a preponderance of the evidence that the disease was caused by nonservice-connected risk factors or nonservice-connected exposure. The presumption of compensability shall not be available if the employer offers a vaccine that is refused by the firefighter or rescue or ambulance worker and the firefighter or rescue or ambulance worker is subsequently diagnosed with the particular disease for which the vaccine was offered, unless the firefighter or rescue or ambulance worker's physician deems that the vaccine is not medically safe or appropriate for the firefighter or rescue or ambulance worker.
      2. In the case of lung disease the presumption of compensability shall not apply to any firefighter or rescue or ambulance worker who has used tobacco products at any time within 10 years of the date of diagnosis.
      3. A firefighter or rescue or ambulance worker shall have been diagnosed within 10 years of the last active date of employment as a firefighter or rescue or ambulance worker.
      4. As used in this subdivision, "exposure" means contact with infectious agents such as bodily fluids through inhalation, percutaneous inoculation, or contact with an open wound, nonintact skin, or mucous membranes, or other potentially infectious materials that may result from the performance of an employee's duties. Exposure includes:
        1. Percutaneous exposure.   Percutaneous exposure occurs when blood or bodily fluid is introduced into the body through the skin, including by needle sticks, cuts, abrasions, broken cuticles, and chapped skin.
        2. Mucocutaneous exposure.   Mucocutaneous exposure occurs when blood or bodily fluids come in contact with a mucous membrane.
        3. Airborne exposure.   Airborne exposure means contact with an individual with a suspected or confirmed case of airborne disease or contact with air containing aerosolized airborne disease.
      1. In the case of police officers, rescue or ambulance workers, or firefighters, post-traumatic stress disorder that is diagnosed by a mental health professional shall be presumed to have been incurred during service in the line of duty and shall be compensable, unless it is shown by a preponderance of the evidence that the post-traumatic stress disorder was caused by nonservice-connected risk factors or nonservice-connected exposure. (I) (i)  In the case of police officers, rescue or ambulance workers, or firefighters, post-traumatic stress disorder that is diagnosed by a mental health professional shall be presumed to have been incurred during service in the line of duty and shall be compensable, unless it is shown by a preponderance of the evidence that the post-traumatic stress disorder was caused by nonservice-connected risk factors or nonservice-connected exposure.
      2. A police officer, rescue or ambulance worker, or firefighter who is diagnosed with post-traumatic stress disorder within three years of the last active date of employment as a police officer, rescue or ambulance worker, or firefighter shall be eligible for benefits under this subdivision (11).
      3. As used in this subdivision (11)(I):
        1. "Firefighter" means a firefighter as defined in 20 V.S.A. § 3151(3) and (4).
        2. "Mental health professional" means a person with professional training, experience, and demonstrated competence in the treatment and diagnosis of mental conditions, who is certified or licensed to provide mental health care services and for whom diagnoses of mental conditions are within his or her scope of practice, including a physician, nurse with recognized psychiatric specialties, psychologist, clinical social worker, mental health counselor, or alcohol or drug abuse counselor.
        3. "Police officer" means a law enforcement officer who has been certified by the Vermont Criminal Justice Council pursuant to 20 V.S.A. chapter 151.
        4. "Rescue or ambulance worker" means ambulance service, emergency medical personnel, first responder service, and volunteer personnel as defined in 24 V.S.A. § 2651 .
      1. A mental condition resulting from a work-related event or work-related stress shall be considered a personal injury by accident arising out of and in the course of employment and be compensable if it is demonstrated by the preponderance of the evidence that: (J) (i)  A mental condition resulting from a work-related event or work-related stress shall be considered a personal injury by accident arising out of and in the course of employment and be compensable if it is demonstrated by the preponderance of the evidence that:
        1. the work-related event or work-related stress was extraordinary and unusual in comparison to pressures and tensions experienced by the average employee across all occupations; and
        2. the work-related event or work-related stress, and not some other event or source of stress, was the predominant cause of the mental condition.
      2. A mental condition shall not be considered a personal injury by accident arising out of and in the course of employment if it results from any disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or similar action taken in good faith by the employer.
  12. "Public employment" means the following:
    1. all officers and State employees, as defined in 3 V.S.A. § 1101 , of all State agencies, departments, divisions, boards, commissions, and institutions, and the Vermont Historical Society;
    2. full-time State's Attorneys and full-time Deputy State's Attorneys;
    3. officers and employees of the General Assembly, provided however, that members of the General Assembly shall be considered as public employees only for the periods that the General Assembly is in session or while engaged in duties for which compensation is provided by law;
    4. members of the Military Forces of the State of Vermont while in the active service of this State ordered by competent authority;
    5. employees of towns, town school districts, incorporated school districts, incorporated villages, and fire districts;
    6. road commissioners or selectboard members while actually engaged in highway maintenance or construction;
    7. policemen, firemen, and other municipal employees entitled to pensions;
    8. all teachers, as defined in 16 V.S.A. § 1931 . No municipality may vote to exclude teachers from the applicability of this chapter;
    9. personnel who are engaged by the State of Vermont in forest fire suppression under the provisions of the Northeastern Forest Fire Protection Compact, while in the active service of this State ordered by competent authority;
    10. volunteer reserve police officers of towns and incorporated villages while acting in the line of duty, when the selectboard members or trustees vote to have those officers covered by this chapter;
    11. other municipal workers, including volunteer firefighters and rescue and ambulance squads while acting in any capacity under the direction and control of the fire department or rescue and ambulance squads;
    12. members of any regularly organized private volunteer fire department while acting in any capacity under the direction and control of the fire department;
    13. members of any regularly organized private volunteer rescue or ambulance squad while acting in any capacity under the direction and control of the rescue or ambulance squad;
    14. sheriffs, full-time deputy sheriffs and county clerks, judges of probate, probate registers, and clerks paid by the State of Vermont;
    15. the term "public employment" shall not include the following:
      1. public officials who are elected by popular vote, except those mentioned in this subdivision (12);
      2. assistant judges of the Superior Court, high bailiffs, county treasurers, or any of their deputies or subordinates;
      3. prisoners or wards of the State;
      4. any person engaged by the State under retainer or special agreement.
  13. "Wages" includes bonuses and the market value of board, lodging, fuel, and other advantages that can be estimated in money and that the employee receives from the employer as a part of his or her remuneration; but does not include any sum paid by the employer to his or her employee to cover any special expenses entailed on the employee by the nature of his or her employment.
  14. "Worker" and "employee" means an individual who has entered into the employment of, or works under contract of service or apprenticeship with, an employer. Any reference to a worker who has died as the result of a work injury shall include a reference to the worker's dependents, and any reference to a worker who is a minor or incompetent shall include a reference to the minor's committee, guardian, or next friend. The term "worker" or "employee" does not include:
    1. An individual whose employment is of casual nature, and not for the purpose of the employer's trade or business.
    2. An individual engaged in amateur sports even if an employer contributes to the support of such sports.
    3. An individual engaged in agriculture or farm employment for an employer whose aggregate payroll is less than $10,000.00 in a calendar year, unless the employer notifies the Commissioner that the employer wishes to be included within the provisions of this chapter; the existence of a contract of insurance shall be considered sufficient notice.
    4. A member of the employer's family dwelling in the employer's house; but, if in any contract of insurance the wages or salary of such a member of the employer's family is included in the payroll on which the premium is based, then that family member shall, in the event of sustaining an injury arising out of and in the course of employment be deemed an employee and compensated accordingly.
    5. Any individual engaged in any type of service in or about a private dwelling unless the employer notifies the Commissioner that the employer wishes to be included within the provisions of this chapter; the existence of a contract of insurance shall be considered sufficient notice.
    6. The sole proprietor or partner owner or partner owners of an unincorporated business provided:
      1. The individual performs work that is distinct and separate from that of the person with whom the individual contracts.
      2. The individual controls the means and manner of the work performed.
      3. The individual holds him- or herself out as in business for him- or herself.
      4. The individual holds him- or herself out for work for the general public and does not perform work exclusively for or with another person.
      5. The individual is not treated as an employee for purposes of income or employment taxation with regard to the work performed.
      6. The services are performed pursuant to a written agreement or contract between the individual and another person, and the written agreement or contract explicitly states that the individual is not considered to be an employee under this chapter, is working independently, has no employees, and has not contracted with other independent contractors. The written contract or agreement shall also include information regarding the right of the individual to purchase workers' compensation insurance coverage and the individual's election not to purchase that coverage. However, if the individual who is party to the agreement or contract under this subdivision is found to have employees, those employees may file a claim for benefits under this chapter against either or both parties to the agreement.
    7. An individual who performs services as a real estate broker or real estate salesperson, provided:
      1. the individual is licensed to broker or sell real estate pursuant to 26 V.S.A. chapter 41;
      2. all the individual's compensation from performing real estate broker or sales services is based on commissions from sales production or results and is not based on time worked or an hourly wage;
      3. the services are performed pursuant to a written agreement or contract between the individual and the real estate sales or broker business or another person with whom the individual is affiliated or associated and the written agreement or contract explicitly states that the individual is not considered to be an employee under this chapter and is not eligible for coverage under this chapter; and
      4. the individual is not treated as an employee for the purposes of federal income and employment taxation with regard to the real estate broker or sales services performed.
    8. With the approval of the Commissioner, a corporation or a limited liability company (L.L.C.) may elect to file exclusions from the provisions of this chapter. A corporation or an L.L.C. may elect to exclude up to four executive officers or managers or members from coverage requirements under this chapter. If all officers of the corporation or all managers or members of an L.L.C. make such election, receive approval, and the business has no employees, the corporation or L.L.C. shall not be required to purchase workers' compensation coverage. If after election, the officer, manager, or member experiences a personal injury and files a claim under this chapter, the employer shall have all the defenses available in a personal injury claim. However, this election shall not prevent any other individual, other than the individual excluded under this section, found to be an employee of the corporation or L.L.C. to recover workers' compensation from either the corporation, L.L.C., or the statutory employer.
  15. "Average weekly wages" means the average weekly wages as computed under section 650 of this title.
  16. "Average compensation" means the current "average weekly wage" under section 1338 of this title, determined previous to the first day of July preceding the date of injury or when compensation is awarded, whichever is later.
  17. [Repealed.]
  18. "Maximum weekly compensation" shall mean a sum of money equal to 150 percent of the average compensation, rounded to the next higher dollar.
  19. "Minimum weekly compensation" shall mean a sum of money equal to 50 percent of the average compensation, rounded to the next higher dollar. However, solely for the purposes of determining permanent total or partial disability compensation where the employee's average weekly wage computed under section 650 of this title is lower than the minimum weekly compensation, the employee's weekly compensation shall be the full amount of the employee's average weekly wages. For the purpose of determining temporary total or temporary partial disability compensation where the employee's average weekly wage computed under section 650 of this title is lower than the minimum weekly compensation, the employee's weekly compensation shall be 90 percent of the employee's average weekly wage prior to any cost of living adjustment calculated under subsection 650(d) of this title.
  20. "Commissioner" means the Commissioner of Labor or the Commissioner's designee.
  21. [Repealed.]
  22. "Health care provider" means a person, partnership, corporation, facility, or institution licensed or certified or authorized by law to provide professional health care service to an individual during the individual's medical care, treatment, or confinement.
  23. "Occupational disease" means a disease that results from causes and conditions characteristic of and peculiar to a particular trade, occupation, process, or employment, and to which an employee is not ordinarily subjected or exposed outside or away from the employment and arises out of and in the course of the employment.
  24. "Evidence that reasonably supports an action" means, for the purposes of section 643a and subsections 650(e) and 662(b) of this title, relevant evidence that a reasonable mind might accept as adequate to support a conclusion that must be based on the record as a whole, and take into account whatever in the record fairly detracts from its weight.
  25. "Medical bill" means any claim, bill, or request for payment from a health care provider or employee for all or any portion of health care services provided to the employee for an injury for which the employee has filed a claim under this chapter.
  26. "Denied medical payment" or "medical bill denial" means a refusal to pay a medical bill based on the employer or insurance carrier asserting, supported by reasonable evidence, any one or more of the following:
    1. The employer or insurance carrier was not provided with sufficient information to determine the payer liability.
    2. The employer or insurance carrier was not provided with reasonable access to information needed to determine the liability or basis for payment of the claim.
    3. The employer or insurance carrier has no liability to pay a medical bill under the provisions of this chapter.
    4. The service was not reasonable or medically necessary.
    5. Another payer is liable.
    6. Another legal or factual ground for nonpayment.
  27. "Medically necessary care" means health care services for which an employer is otherwise liable under the provisions of this chapter, including diagnostic testing, preventive services, and aftercare, that are appropriate, in terms of type, amount, frequency, level, setting, and duration, to the injured employee's diagnosis or condition. Medically necessary care must be informed by generally accepted medical or scientific evidence and consistent with generally accepted practice parameters as recognized by health care professionals in the same specialties as typically provide the procedure or treatment, or diagnose or manage the medical condition; must be informed by the unique needs of each individual patient and each presenting situation; and must:
    1. help restore or maintain the injured employee's health; or
    2. prevent deterioration of or palliate the injured employee's condition; or
    3. prevent the reasonably likely onset of a health problem or detect an incipient problem.
  28. "Aerosolized airborne infectious agents" means microbial aerosols that can enter the human body, usually through the respiratory tract, and cause disease, including mycobacterium tuberculosis, meningococcal meningitis, varicella zoster virus, diphtheria, mumps, pertussis, pneumonic plague, rubella, severe acute respiratory syndrome, anthrax, and novel influenza.
  29. "Blood-borne pathogens" means pathogenic microorganisms that are present in human blood and can cause disease in humans, including anthrax, hepatitis B virus (HBV), hepatitis C virus (HCV), human immunodeficiency virus (HIV), rabies, vaccinia, viral hemorrhagic fevers, and methicillin-resistant staphylococcus aureus.
  30. "Bodily fluids" means blood and bodily fluids containing blood or other potentially infectious materials as defined in the Vermont Occupational Safety and Health Administration Bloodborne Pathogen Standard (1910.1030). Bodily fluids also include respiratory, salivary, and sinus fluids, including droplets, sputum and saliva, mucus, and other fluids through which infectious airborne organisms can be transmitted between persons.

    Amended 1959, No. 222 ; 1965, No. 169 ; 1967, No. 122 , § 1; 1969, No. 186 (Adj. Sess.), § 1; 1971, No. 241 (Adj. Sess.), §§ 1, 2; 1973, No. 64 , § 1; 1973, No. 70 , § 1; 1975, No. 177 (Adj. Sess.), § 1; 1975, No. 201 (Adj. Sess.); 1977, No. 182 (Adj. Sess.), §§ 1, 21, eff. May 3, 1978; 1981, No. 39 ; 1981, No. 165 (Adj. Sess.), §§ 1, 3, 4; 1981, No. 204 (Adj. Sess.), §§ 1, 2; 1983, No. 121 (Adj. Sess.), § 1, eff. March 28, 1984; 1985, No. 194 (Adj. Sess.), §§ 1, 2; 1987, No. 183 (Adj. Sess.), § 13; 1987, No. 189 (Adj. Sess.); 1993, No. 23 , §§ 1, 2, eff. May 19, 1993; 1993, No. 225 (Adj. Sess.), §§ 1, 2; 1995, No. 180 (Adj. Sess.), § 38a; 1999, No. 41 , §§ 2, 3; 2003, No. 132 (Adj. Sess.), §§ 4, 14, eff. May 26, 2004; 2005, No. 69 , § 1; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2005, No. 108 (Adj. Sess.), § 2; 2005, No. 209 (Adj. Sess.), § 32; 2005, No. 212 (Adj. Sess.), § 11, eff. May 29, 2006; 2007, No. 42 , § 2; 2009, No. 61 , § 26; 2011, No. 133 (Adj. Sess.), § 3; 2011, No. 155 (Adj. Sess.), § 44; 2013, No. 86 , § 1; 2013, No. 96 (Adj. Sess.), § 136; 2013, No. 161 (Adj. Sess.), § 72; 2017, No. 80 , § 23; 2017, No. 113 (Adj. Sess.), § 147.

History

Source. 1957, No. 106 . 1957, No. 150 , § 1. 1957, No. 233 . 1955, No. 172 , §§ 1, 2. 1955, No. 228 , §§ 1, 2. 1953, No. 125 , § 1. V.S. § 1947, § 8054. 1947, No. 202 , § 8217. 1947, No. 157 , § 1. P.L. §§ 6485, 6486. 1929, No. 107 . 1927, No. 98 . §§ 5758, 5759. 1917, No. 175 , §§ 4, 5. 1915, No. 164 , §§ 58, 59.

Reference in text. The Northeastern Forest Fire Protection Compact, referred to in subdiv. (12)(I), is codified as 10 V.SA. § 2461 et seq.

2020. In subdiv. (11)(I)(iii)(III), substituted "Vermont Criminal Justice Council" for "Vermont Criminal Justice Training Council" in accordance with 2019, No. 166 (Adj. Sess.), § 2(b).

2016. In subdiv. (11)(E)(i), substituted "July 1, 2007" for "the effective date of this act" in accordance with 2 V.S.A. § 424 and 2007, No. 42 , § 2.

2014. Subdivs. (12)(F) and (12)(J) substituted "selectboard members" for "selectmen" in accordance with 2013, No. 161 (Adj. Sess.) § 72.

2006. In subdiv. (24), substituted "662(b)" for "662(a)" to correspond to the correct subsection.

Revision note - At the end of subdiv. (12)(N)(i), substituted "subdivision" for "division" to conform reference to V.S.A. style.

Substituted "individual" for "individal" following "state to an" in subdiv. (22) to correct a typographical error.

Amendments--2017 (Adj. Sess.) Subdiv. (11)(E): Amended generally.

Amendments--2017. Subdivs. (11)(I)-(11)(J): Added.

Amendments--2013 (Adj. Sess.). Subdiv. (11)(E): Act No. 96 substituted "dies or has a" for "suffers death" following "who" and "had" for "suffered" following "presumed to have".

Subdiv. (14)(H): Substituted "experiences" for "suffers" following "or member".

Amendments--2013. Subdiv. (11)(H): Added.

Subdivs. (28)-(30): Added.

Amendments--2011 (Adj. Sess.). Subdiv. (2): Rewritten by Act No. 133.

Subdivs. (12)(K)-(M): Amended generally by Act No. 155.

Amendments--2009. Subdiv. (22): Substituted "means" for "shall mean" preceding "a person", deleted "in this state" following "health care service" and made minor changes in punctuation.

Subdivs. (25)-(27): Added.

Amendments--2007. Subsec. (11): Added subdivs. (E), (F), and (G).

Amendments--2005 (Adj. Sess.) Subdiv. (11)(A): Act No. 108 inserted "and" preceding "volunteer reserve police officers" and deleted "and firefighters, except full-time firefighters" thereafter, and inserted "that" preceding "becomes symptomatic".

Subdiv. (11)(B): Act No. 108 substituted "firefighters, as defined in 20 V.S.A. § 3151(3) and (4)" for "a full-time firefighter, which, for the purposes of this subdiv. (11), has the same meaning as in 20 V.S.A. § 3151(4)".

Subdiv. (12)(A): Act No. 209 substituted "officers and state employees as defined in section 1101 of Title 3, of" for "officers and employees of".

Subdiv. (14)(H): Amended generally by Act No. 212.

Subdiv. (20): Act No. 103 substituted "commissioner of labor" for "commissioner of labor and industry".

Amendments--2005 Subdiv. (11): Amended generally.

Amendments--2003 (Adj. Sess.) Subdivs. (3) and (14): Amended generally.

Subdiv. (19): Substituted "90 percent of the employee's average weekly wage prior to any cost of living adjustment calculated under subsection 650(d) of this title" for "the employee's weekly net income".

Subdiv. (21): Deleted.

Subdiv. (24): Added.

Amendments--1999. Subdiv. (7): Inserted "occupational diseases" preceding "death resulting".

Subdiv. (11)(B): In the introductory paragraph, substituted "firefighters" for "fire fighters" and "means" for "shall mean"; in subdiv. (i), substituted "the worker's" for "his", "the" for "his" and deleted "but not limited to"; in subdiv. (ii), substituted "the" for "his" and deleted "and" from the end; in subdiv. (iii), substituted "the" for "his" twice and added a comma to the end of the subdivision; and added subdivision (iv).

Subdiv. (14)(G): Added.

Subdiv. (23): Added.

Amendments--1995 (Adj. Sess.) Subdiv. (22): Amended generally.

Amendments--1993 (Adj. Sess.). Subdiv. (19): Substituted "solely for the purposes of determining permanent total or permanent partial disability compensation" for "in cases" following "however" and made other minor changes in phraseology in the second sentence and added the third sentence and made minor changes in phraseology.

Subdiv. (21): Added.

Subdiv. (22): Added.

Amendments--1993. Subdiv. (12)(N): Deleted "and" preceding "full-time" and inserted "and county clerks, judges of probate, probate registers and clerks" preceding "paid."

Subdiv. (12)(O)(ii): Deleted "judges of probate" preceding "high" and "county clerks" following "treasurers."

Amendments--1987 (Adj. Sess.). Subdiv. (12): Act No. 183 added present subdiv. (N), redesignated former subdiv. (N) as present subdiv. (O) and deleted "sheriffs" following "probate" in present subdiv. (O)(ii).

Subdiv. (14)(F): Added by Act No. 189.

Amendments--1985 (Adj. Sess.). Subdiv. (17): Repealed.

Subdiv. (18): Substituted "150" for "100" preceding "percent".

Amendments--1983 (Adj. Sess.). Subdiv. (11)(A): Inserted "rescue or ambulance worker" preceding "constable".

Subdiv. (11)(B): Inserted "rescue and ambulance workers" preceding "shall".

Subdiv. (11)(B)(i): Deleted "as a fireman" following "Service" and inserted "or emergency" following "fire" wherever it appeared and following "fire-fighting".

Subdiv. (11)(B)(ii): Deleted "as a fireman" following "service" and inserted "or emergency" following "fire-fighting".

Subdiv. (11)(B)(iii): Deleted "fire" preceding "department officer".

Subdiv. (12): Substituted "workers, including volunteer fire fighters and rescue and ambulance squads while acting in the line of duty" for "employees" preceding "after" in subdiv. (12)(K), redesignated former subdiv. (12)(L) as present subdiv. (12)(N) and made minor stylistic changes in that subdivision, and added present subdiv. (12)(L) and subdiv. (12)(M).

Amendments--1981 (Adj. Sess.). Subdiv. (3): Act No. 165 substituted "workers" for "workmen" preceding "there employed" at the end of the first sentence.

Subdiv. (4): Act No. 165 inserted "includes public employment, and" preceding "in the case".

Subdiv. (8): Act No. 165 substituted "workers"' for "workmen's" preceding "compensation".

Subdiv. (12): Amended generally by Act No. 165.

Subdiv. (14): Act No. 165 substituted "worker" for "workman" in three places.

Subdiv. (18): Act No. 204 deleted "for the year July 1, 1976-June 30, 1977, means a sum of money equal to 80 per cent of the average compensation, rounded to the next higher dollar, and thereafter it" preceding "shall mean".

Subdiv. (19): Act No. 204 deleted "for the year July 1, 1976-June 30, 1977 means a sum of money equal to 40 per cent of the average compensation, rounded to the next higher dollar, and thereafter it" preceding "shall mean" in the first sentence.

Amendments--1981. Subdiv. (14)(C): Substituted "$2,000.00" for "$1,000.00" following "less than".

Amendments--1977 (Adj. Sess.). Subdiv. (7): Substituted "prosthetic devices, hearing aids" for "artificial limbs, eyes, teeth" following "replacement of".

Subdiv. (20): Added.

Amendments--1975 (Adj. Sess.). Subdiv. (11)(C): Act No. 201 substituted "seventy-two" for "twenty-four" preceding "hours".

Subdiv. (11)(E): Act No. 201 substituted "seventy-two" for "twenty-four" preceding "hours".

Subdiv. (18): Act No. 177 inserted "for the year July 1, 1976-June 30, 1977" preceding "means", substituted "80 per cent" for "60 percent" following "equal to" and added "and thereafter it shall mean a sum of money equal to 100 per cent of the average compensation, rounded to the next higher dollar" following "dollar".

Subdiv. (19): Act No. 177 inserted "for the year July 1, 1976-June 30, 1977" preceding "means", substituted "40 per cent" for "30 percent" following "equal to" and added "and thereafter it shall mean a sum of money equal to 50 per cent of the average compensation, rounded to the next higher dollar" following "dollar" in the first sentence.

Amendments--1973. Subdiv. (14): Amended generally by Act No. 70.

Subdiv. (18): Act No. 64 substituted "60 percent of" for "one-half" following "equal to" and deleted "but for the year July 1, 1967 until June 1, 1968, this amount shall not be less than $52.00 and after July 1, 1968, this amount shall be not less than $54.00" following "dollar".

Subdiv. (19): Act No. 64 substituted "30 percent of" for "one-quarter" following "equal to" and deleted "but for the year July 1, 1967, until July 1, 1968, this amount shall not be less than $26.00 and after July 1, 1968, this amount shall not be less than $27.00" following "dollar" in the first sentence.

Amendments--1971 (Adj. Sess.). Subdiv. (11)(A): Inserted "constable, chief of police, police officer and additional police officers who hold temporary appointments in any city, town or incorporated village" following "fire fighter".

Subdiv. (11)(D): Added.

Subdiv. (11)(E): Added.

Amendments--1969 (Adj. Sess.). Subdiv. (4): Amended generally.

Amendments--1967. Subdivs. (15)-(19): Added.

Amendments--1965. Subdiv. (14): Added the third sentence.

Amendments--1959. Subdiv. (11)(A): Amended generally.

Subdiv. (11)(B): Amended generally.

Subdiv. (11)(C): Added.

Transfer of provisions. 1999, No. 41 , § 8(c) provides that all diseases previously classified as occupational diseases under 21 V.S.A. chapter 11, Compensation for Occupational Diseases, shall be treated as occupational diseases under 21 V.S.A. chapter 9, Employer's Liability and Workers' Compensation.

ANNOTATIONS

Analysis

1. Construction.

The Legislature, in enacting the predecessor to the definition of employer set forth in subdivision (3) of this section, wanted (1) to protect employees of independent contractors and subcontractors who were not financially responsible and (2) to prevent owners of trades or businesses or general contractors from relieving themselves of liability under this chapter by doing through independent contractors what they would otherwise do through their direct employees. King v. Snide, 144 Vt. 395, 479 A.2d 752 (1984).

Legislative intent of subdivision (3) of this section was to impose liability only upon the owner or proprietor of a regular trade or business conducted on his premises, or the premises of another, where an uninsured independent contractor is carrying out some phase of the owner's or operator's business. King v. Snide, 144 Vt. 395, 479 A.2d 752 (1984).

2. Purpose.

Subdivision (3) of this section in effect creates a statutory relationship of employer and employee, where no such relationship existed at common law. King v. Snide, 144 Vt. 395, 479 A.2d 752 (1984).

The contract between employer and employee, under this chapter, relative to compensation for injuries, is one that is personal between the two contracting parties. Quinn v. Pate, 124 Vt. 121, 197 A.2d 795 (1964).

3. Employer.

Vermont Agency of Human Services was not the statutory employer of a claimant who provided nursing care to a child in his home. The Agency's sole function was to administer a public welfare Medicaid program, while the claimant's business was actual provision of nursing care in return for Medicaid payments. Marcum v. State Agency of Human Servs., 191 Vt. 573, 38 A.3d 1177 (mem.) (2012).

Owners of the building where a decedent had worked as a funeral director were not statutory employers, as nothing showed that they were engaged in the funeral home business in their capacity as property owners. The fact that the landlord entities and the funeral home business had overlapping personnel was not dispositive. Arnold v. Palmer, 189 Vt. 608, 19 A.3d 592 (2011).

A cleaning service, that was hired to clean the offices of a worker's employer, a utility company, was not the worker's statutory employer. The worker was an employee of the utility, which employed the cleaning service to perform an entirely unrelated function that was relatively peripheral to its central business of generating and transmitting electricity. Smedberg v. Detlef's Custodial Service, Inc., 182 Vt. 349, 940 A.2d 674 (Sept. 21, 2007).

Because subsection (3) of this section contemplates a broader definition of employer than that established by the common law, that definition may, under certain circumstances, include indirect corporate employers; nonetheless, the commissioner is not precluded by any jurisdictional barrier from finding a statutory employer relationship under such circumstances. Frazier v. Preferred Operators, Inc., 177 Vt. 571, 861 A.2d 1130 (mem.) (September 24, 2004).

Where stipulated facts showed that claimant's employer was being operated to carry out some phase of the business of the lumberyard where plaintiff was injured, the Commissioner did not err in concluding that the lumberyard was claimant's statutory employer under subsection (3) of this section and case law applying the nature-of-the-business test. Frazier v. Preferred Operators, Inc., 177 Vt. 571, 861 A.2d 1130 (mem.) (September 24, 2004).

The qualifying clause "who is virtually the proprietor or operator of the business there carried on" contained in the statutory definition of "employer" modifies both the immediate antecedent phrase "other person" and the previous phrase "the owner or lessee of premises." Vella v. Hartford Vt. Acquisitions, Inc., 176 Vt. 151, 838 A.2d 126 (2003).

The critical inquiry in determining whether an indirect employer is a statutory employer is whether the type of work being carried out by the direct employer is the type of work that could have been carried out by the indirect employer's employees as part of the regular course of the business. Vella v. Hartford Vt. Acquisitions, Inc., 176 Vt. 151, 838 A.2d 126 (2003).

The underlying purpose of the statutory definition of employer is to prevent business owners or general contractors from attempting to avoid liability for workers' compensation benefits by hiring independent contractors to do what they would have otherwise done themselves through their direct employees. Vella v. Hartford Vt. Acquisitions, Inc., 176 Vt. 151, 838 A.2d 126 (2003).

Defendant, a commercial landlord, failed in its argument that, by agreeing to keep its premises safe, it assumed the duty of plaintiff's employer to provide a safe workplace, and thus was immunized from tort suits; plaintiff's action did not concern a suit against someone directly involved in the employer's business operations, and defendant's duty to maintain the premises was not the same as the employer's duty to provide a safe workplace for its employees because it is the kind of independent, personal duty that is inconsistent with the status of a "virtual employer." Vella v. Hartford Vt. Acquisitions, Inc., 176 Vt. 151, 838 A.2d 126 (2003).

Wording of the definition of "employer" in the Workers' Compensation Act was intended to impose liability for worker's compensation benefits upon business owners who hire independent contractors to carry out some phase of their business. Edson v. State, 175 Vt. 330, 830 A.2d 671 (2002).

The critical inquiry in determining whether an employer is a '"statutory employer" under the Workers' Compensation Act is whether the type of work being carried out by the independent contractor is the type of work that could have been carried out by the owner's employees as part of the regular course of the business. Edson v. State, 175 Vt. 330, 830 A.2d 671 (2002).

The State was the statutory employer of plaintiff who was injured while working for a trucking firm that had a contract to load and deliver merchandise for the Vermont Department of Liquor Control and was therefore immune from his negligence claim. Edson v. State, 175 Vt. 330, 830 A.2d 671 (2002).

Defendant, who owned the premises and carried on the business where plaintiff worked and who supervised plaintiff's work and had the power to replace her if her work proved unsatisfactory, was plaintiff's "employer" under 21 V.S.A. § 601(3), even though plaintiff received her pay and benefits from her direct employer, a temporary placing agency, which had contracted with defendant to provide the service; therefore, defendant, as "employer" under the statute, was immune from plaintiff/employee's common-law negligence suit under the Workers' Compensation Act's employer-immunity provision, 21 V.S.A. § 622. Candido v. Polymers, Inc., 166 Vt. 15, 687 A.2d 476 (1996).

In order to find a person an employer under subdivision (3) of this section, the work being carried out by an independent contractor on the owner's or proprietor's premises must be of the type that could have been carried out by employees of the owner or proprietor in the course of his usual trade or business. King v. Snide, 144 Vt. 395, 479 A.2d 752 (1984).

Whether work contracted for by an owner or proprietor with an independent contractor is a part of, or process in, the trade, business or occupation of the owner or proprietor, thus making him an employer under subdivision (3) of this section, must be decided on a case by case basis, and due consideration must be given to the customary practice of the owner or proprietor in carrying on his usual business and to the terms of the contract between the employee and independent contractor. King v. Snide, 144 Vt. 395, 479 A.2d 752 (1984).

Where claimant for workers' compensation benefits was hired by an independent contractor to cut wood and injured in the course of and arising out of his employment, since defendant who entered into the contract with the independent contractor for the logging was a retired grocery store operator, was not carrying on his regular trade or business for pecuniary gain on the woodlot, nor was he acting as proprietor of the owner's regular trade or business, but rather was merely managing the woodlot on behalf of the owner and at the time of claimant's accident was overseeing the logging operation to make sure that the independent contractor was living up to the terms of his contract with him, defendant was not the employer of claimant. King v. Snide, 144 Vt. 395, 479 A.2d 752 (1984).

Where findings of court not only failed to show that plaintiff's employer was acting as a contractor or servant of defendant at time of accident, but court expressly found that such employer was then engaged in carrying on an independent business of his own, plaintiff could not recover of defendant under workmen's compensation act on theory that relation of plaintiff's employer was that of independent contractor. Blake v. American Fork & Hoe Co., 99 Vt. 301, 131 A. 844 (1926).

Under Workmen's Compensation Act, if work being done pertains to business, trade, or occupation of claimed employer, carried on by him for gain, fact that it was being done through medium of independent contractor does not relieve him from liability. O'Boyle v. Parker-Young Co., 95 Vt. 58, 112 A. 385 (1921).

4. Borrowed employee.

There can be no compensation liability in the absence of a contract of hire between an employee and a borrowing employer, either express or implied. Mercier v. Holmes, 119 Vt. 368, 125 A.2d 790 (1956).

Where claimant was injured while working at plant of another company under arrangement between defendant employer and such company for "swapping work," finding that claimant was paid by and remained under exclusive control of defendant's superintendent, settled his status as employee of defendant at time of injury, especially in view of finding that work at other company's plant had become an established mode of operation in defendant's business and was incidental and appurtenant thereto. Hall v. Crystal Lake Ice Co., 109 Vt. 416, 199 A. 252 (1938).

5. Employment.

Private person engaged in building a private dwelling for himself was not engaged in "employment" within meaning of term as defined in this section. Travelers Insurance Co. v. Evans, 101 Vt. 250, 143 A. 290 (1928).

6. Public employment.

Even though plaintiff entered into an employee - employer relationship with the state by "special agreement," because every factor significant to identifying him as an employer was found to be present, he was an employee of the State for purposes of the Workers' Compensation Act. Fotinopoulos v. Department of Corr., 174 Vt. 510, 811 A.2d 1227 (2002).

Student member of volunteer fire brigade sponsored by university was not in public employment as defined by subdivision (12)(L) of this section where fire brigade had not elected to have its members covered by this chapter; election by university to cover members of the fire brigade was not valid, as the "organization" specified in subdivision (12)(L) had to be the fire brigade. Wolfe v. Yudichak, 153 Vt. 235, 571 A.2d 592 (1989).

7. Employee.

Because a county transportation authority's payments to the workers' compensation claimant, who was a "volunteer" driver with the authority, were reimbursement for the long-term depreciation in the value of her car due to the miles she drove as a participant in the volunteer driver program and served only to make the claimant whole, the claimant did not receive wages and could not be considered an employee of the transportation authority. Perrault v. Chittenden County Transp. Auth., 207 Vt. 550, 192 A.3d 381 (May 25, 2018).

Girl who during time of her employment in manufacturing establishment was between 14 and 16 years of age, and had not deposited with her employer an employment certificate as required by child labor law, was illegally employed, and, therefore, did not become an employee within meaning of workmen's compensation act, and was neither subject to its provisions, nor entitled to remedy there provided. Wlock v. Fort Dummer Mills, 98 Vt. 449, 129 A. 311 (1925).

Workman employed by building contractor in the erection of building for creamery company, under contract therefor between company and contractor, and paid by checks drawn by company to order of contractor and by him indorsed and delivered to workman, was not employee of company and entitled to receive compensation from it for injuries received while so employed. Packett v. Moretown Creamery Co., 91 Vt. 97, 99 A. 638 (1917).

8. Independent contractor.

Truck driver was not independent contractor and was entitled to workers' compensation benefits, despite "lease agreement," where truck owners instructed driver on truck maintenance and size of load, suggested driving routes, made arrangements with third parties and received payments, and paid maintenance and fuel costs. Falconer v. Cameron, 151 Vt. 530, 561 A.2d 1357 (1989).

Test for determining whether one performing work for another is servant or independent contractor is right of one for whom work is being done to control work. Crawford v. Lumberman's Mutual Casualty Co., 126 Vt. 12, 220 A.2d 480 (1966).

In determining whether the person for whom the work is being performed has the right to control the work, no one consideration is determinative though the fact that the worker was paid by the unit for work completed and that his employment was casual, over an indefinite period, without fixed hours and at the discretion of the worker, suggest an independent contractual relationship. Crawford v. Lumberman's Mutual Casualty Co., 126 Vt. 12, 220 A.2d 480 (1966).

Person selling baker's bread in territory designated by baker, taking from bakery such quantity as he desired, selling to whom he could for such price as he saw fit, using his own automobile or truck in such work, and bearing all expense incident to its upkeep and operation, paying baker fixed price for all bread sold and returning whatever was unsold, was "independent contractor," where only control exercised by baker was that such person was not allowed to invade territory of anyone else acting for baker, and must begin work at certain time in morning. Crawford v. Lumberman's Mutual Casualty Co., 126 Vt. 12, 220 A.2d 480 (1966).

Slater employed to do particular work of slating defendant's house, supplying his own tools, assistants, and instrumentalities, except completed stagings which defendant agreed to furnish, and who alone supervised, controlled, and directed work, defendant specifying result only, and slater adopting such means and methods as he saw fit to accomplish that result, was independent contractor. Travelers Insurance Co. v. Evans, 101 Vt. 250, 143 A. 290 (1928).

Fact that person who cut lumber for corporation was paid by thousand feet, was evidence tending to show that he was an independent contractor and not an employee. Morgan v. Gould, 96 Vt. 275, 119 A. 517 (1923).

An independent contractor is not a "workman" or "employee" within the meaning of the Workmen's Compensation Act. Kelley's Dependents v. Hoosac Lumber Co., 95 Vt. 50, 113 A. 818 (1921).

9. Casual employment.

In determining whether employment was purely "casual," within meaning of subdivision (14)(A) of this section, contract for service is thing to be analyzed. Chamberlain v. Central Vermont Railway, 100 Vt. 284, 137 A. 326 (1927).

Employment of farmer by independent contractor to help saw wood and load it into cars at a stipulated price per cord, but for no definite term, was purely casual within meaning of Workmen's Compensation Act. Chamberlain v. Central Vermont Railway, 100 Vt. 284, 137 A. 326 (1927).

10. Partial disability.

The definition of partial disability contained in subdivision (10) of this section does not apply to section 648 of this title and only addresses the award of temporary benefits for temporary disability: the text of section 646 of this title contains the defined term, while the text of section 648 of this title does not, and ability to work is a crucial factor in computing temporary disability benefits, but not in computing permanent partial benefits, which relies upon a scheduled benefits system. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

11. Accident.

The word "accident," as used in subdivision (11)(A) of this section, means an unlooked-for mishap or an untoward event which is not expected or designed. Masterson v. Rutland Hospital, 129 Vt. 91, 271 A.2d 848 (1970), overruled on other grounds, Campbell v. Heinrich Savelberg, Inc. (1980) 139 Vt. 31, 421 A.2d 1291.

12. Causation.

In a workers' compensation case, there was sufficient evidence that the claimant's left-shoulder pain was caused by her work-related right-shoulder injury. In a report, the carrier's osteopath acknowledged a causal relationship, and although he might not have explicitly quantified his opinion with a specific percentage, the claimant's treating surgeon plainly opined that the left-shoulder injury was caused by the right-shoulder injury. Brace v. Vergennes Auto, Inc., 186 Vt. 542, 978 A.2d 441 (mem.) (2009).

Where Commissioner of Labor and Industry found that claimant strained his lower back on November 24, 1980, during the course of his employment and that claimant was treated for a low back strain by a chiropractor from November 24, 1980, until February of 1981, at which time he was found to be suffering from a herniated disk, Commissioner's conclusion that claimant's herniated disk arose out of and in the course of his employment was pure speculation or surmise and, therefore, legally insufficient to support an award of workers' compensation benefits to claimant, since there was a gap in the chain of causation leading from the strain to the herniated disk. Norse v. Melsur Corp., 143 Vt. 241, 465 A.2d 275 (1983).

Where workman had sustained injuries by accident arising out of and in course of employment, and those injuries aggravated or accelerated latent or inactive pulmonary tuberculosis, resulting in his death from pulmonary tuberculosis, disease resulted from injury within meaning of subdivision (11)(A) of this section. Morrill v. Charles Bianchi & Sons, Inc., 107 Vt. 80, 176 A. 416 (1935).

13. Injury caused by third person.

Where claimant was injured while at work as result of horseplay by fellow employee on another shift, who was trespasser in plant at time of accident, and where it was found that commission of such act was within reasonable contemplation of employer and that probability of its commission created additional hazard incident to claimant's employment, claimant was not precluded from recovering by provision of subdivision (11)(A) of this section, that compensable injury includes injury caused by willful act of third person directed against employee because of his employment, since such construction of statute would be unreasonable. Myott v. Vermont Plywood, Inc., 110 Vt. 131, 2 A.2d 204 (1938).

14. Diseases.

The plain language and statutory design of the workmen's compensation law restricts compensation for disease to those illnesses which result from accidental injury, save only in cases of firefighters stricken by heart ailment while in line of duty, and does not include pulmonary tuberculosis contracted at a hospital. Masterson v. Rutland Hospital, 129 Vt. 91, 271 A.2d 848 (1970), overruled on other grounds, Campbell v. Heinrich Savelberg, Inc. (1980) 139 Vt. 31, 421 A.2d 1291.

Special exception provided in subdivision (11)(A) of this section in the case of firemen disabled by heart disease, made it clear that the legislature did not intend to save other diseases from the exclusion of the workmen's compensation statute. Masterson v. Rutland Hospital, 129 Vt. 91, 271 A.2d 848 (1970), overruled on other grounds, Campbell v. Heinrich Savelberg, Inc. (1980) 139 Vt. 31, 421 A.2d 1291.

15. Wages.

When a supervisory union provided the claimant, a student teacher, with teaching experience and mentoring necessary for her to become a licensed teacher, this qualified as remuneration under the workers' compensation statute. Lyons v. Chittenden Cent. Supervisory Union, 207 Vt. 59, 185 A.3d 551 (2018).

Where the loss of an educational program equates to a loss of the license to practice a profession, as a matter of law, the value of the lost advantage can be estimated in money for purposes of the workers' compensation definition of "wages." Lyons v. Chittenden Cent. Supervisory Union, 207 Vt. 59, 185 A.3d 551 (2018).

Workers' compensation claimant who was injured while student teaching received "wages" and thus was an "employee" because she received an "advantage" in that the position was meeting the requirement for a teacher's license and because the value of that advantage could be "estimated in money" in that the loss of the educational program equated to a loss of the license to practice a profession. Lyons v. Chittenden Cent. Supervisory Union, 207 Vt. 59, 185 A.3d 551 (2018).

Value of a workers' compensation claimant's college tuition benefits was an "other advantage" to be included in the calculation of her average weekly wage, as the benefit was clearly an "advantage" of considerable economic value and its value could be estimated in money, the claimant received the benefit as "remuneration," and such an interpretation was consistent with the purpose of the workers' compensation laws. Haller v. Champlain College, 206 Vt. 86, 177 A.3d 497 (2017).

Commissioner of the Department of Labor properly concluded that allowing employer-paid health insurance benefits to be included in the average weekly wage calculation would upset the "delicate balance" that the law sought to maintain. Lydy v. Trustaff, Inc., 194 Vt. 165, 76 A.3d 150 (2013).

The term "wages" as used in this chapter is synonymous with "earnings." Quinn v. Pate, 124 Vt. 121, 197 A.2d 795 (1964).

16. Amateur sports exclusion.

Lodging employee was not barred from receiving workers' compensation benefits for skiing injury, since Legislature intended to restrict "amateur sports exclusion" to sports involving an athletic competition, and employee's injury occurred during recreational skiing. Grather v. Gables Inn, Ltd., 170 Vt. 377, 751 A.2d 762 (2000).

17. Limitations.

The plain meaning of subsection (a) [of former 21 V.S.A. 1006] indicates that a plaintiff's claim based on a diagnosis of pulmonary asbestosis is time-barred if not brought within five years of exposure. Carter v. Fred's Plumbing & Heating, Inc., 174 Vt. 572, 816 A.2d 1280 (mem.) (2002).

18. Minimum weekly compensation .

Provision of this section defining "minimum weekly compensation" does not authorize the capping of permanent disability benefits. Morin v. Essex Opticalhe Hartford, 178 Vt. 29, 868 A.2d 729 (January 28, 2005).

19. Medical end result.

In a workers' compensation case involving a left-shoulder injury, the expert testimony as well as the claimant's testimony by the time of the hearing that she was able to work much longer hours than in the summer of 2005 supported the finding that the claimant had not reached a medical end result by July 2005. Furthermore, even in the absence of surgery during that period, the claimant made significant improvement in the range of motion of both shoulders after July 2005, and the record revealed that she reasonably declined to have surgery on her left shoulder during the six-month period following the surgery on her right shoulder. Brace v. Vergennes Auto, Inc., 186 Vt. 542, 978 A.2d 441 (mem.) (2009).

20. Evidence.

There appears to be no legal requirement that the Commissioner of the Department of Labor make findings on all five factors of the test used to evaluate competing expert medical opinions. Houle v. Ethan Allen, Inc., 190 Vt. 536, 24 A.3d 586 (2011).

Cited. Morrisseau v. Legac, 123 Vt. 70, 181 A.2d 53 (1962); Herbert v. Laymen, 125 Vt. 481, 218 A.2d 706 (1966), overruled on other grounds, Whitney v. Fisher (1980) 138 Vt. 468, 417 A.2d 934, cert. denied, 510 U.S. 947, 114 S. Ct. 388, 126 L. Ed. 2d 336 (1993); Johnson v. Fisher, 131 Vt. 382, 306 A.2d 696 (1973); Ryan v. New Bedford Cordage Co., 421 F. Supp. 794 (D. Vt. 1976); In re Murphy, 140 Vt. 561, 443 A.2d 450 (1982); Montgomery v. Brinver Corp., 142 Vt. 461, 457 A.2d 644 (1983); Fleury v. Kessel/Duff Construction Co., 148 Vt. 415, 533 A.2d 1197 (1987); Shaw v. Dutton Berry Farm, 160 Vt. 594, 632 A.2d 18 (1993); King v. Lowell, 160 Vt. 614, 648 A.2d 822 (mem.) (1993); Miller v. International Business Machines Corp., 161 Vt. 213, 637 A.2d 1072 (1993); McLaughlin v. State, 161 Vt. 492, 642 A.2d 683 (1994).

Law review commentaries

Law review. The compensability of mental injuries, see 8 Vt. L. Rev. 145 (1983).

§ 602. Process and procedure.

  1. All process and procedure under the provisions of this chapter shall be as summary and simple as reasonably may be.  The Commissioner may make rules not inconsistent with such provisions for carrying out the same and shall cause to be printed and furnished, free of charge, to any employer or employee such forms as he or she deems necessary to facilitate or promote the efficient administration of such provisions.
  2. The Commissioner shall determine the form in which reports are filed and what shall constitute a signature on the reports, including those filed in other than paper form, such as electronically or over telephone lines.
  3. Any communication from an employer or an insurer to a claimant that is not otherwise required to be provided on a form prescribed by the Commissioner must include a statement advising the claimant that he or she should contact the Department of Labor's Workers' Compensation Division to determine any right to object or appeal, as provided by law, and to seek information from the Department on the process and procedures.

    Amended 2009, No. 146 (Adj. Sess.), § B17; 2013, No. 199 (Adj. Sess.), § 61, eff. June 24, 2014.

History

Source. V.S. 1947, § 8055. P.L. § 6487. G.L. § 5760. 1917, No. 171 , § 3. 1915, No. 164 , § 30.

Amendments--2013 (Adj. Sess.). Subsec. (c): Added.

Amendments--2009 (Adj. Sess.). Added the subsec. (a) designation and added subsection (b).

ANNOTATIONS

1. Attorney fees .

Workers' Compensation Rule 10, which caps attorney fees at $35 per hour where a plaintiff is successful in a claim against a defendant, is authorized by 21 V.S.A. § 602, which authorizes the Commissioner of Labor and Industry to issue rules, and is consistent with 21 V.S.A. § 678, which allows recovery of reasonable attorney fees when a plaintiff prevails. Miller v. IBM, 163 Vt. 396, 659 A.2d 1126 (1995).

Cited. Travelers Indemnity Co. v. Wallis, 176 Vt. 167, 845 A.2d 316 (2003).

§ 603. Witnesses, oaths, books, papers, records.

  1. So far as it is necessary in his or her examinations and investigations and in the determination of matters within his or her jurisdiction, the Commissioner shall have power to subpoena witnesses, administer oaths, and to demand the production of books, papers, records, and documents for his or her examination.
  2. The Superior Court, a justice of the Supreme Court, or a Superior judge shall have power to enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of such books, papers, records, and documents before the Commissioner, and in the case of a corporation, the provisions of 11 V.S.A. §§ 441-444 shall apply.

    Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source. V.S. 1947, §§ 8056, 8057. P.L. §§ 6488, 6489. 1933, No. 157 , §§ 6162, 6163. G.L. §§ 5756, 5760. 1917, No. 171 , §§ 3, 6. 1915, No. 164 , § 30.

Amendments--1973 (Adj. Sess.). Subsec. (b): Substituted "Superior" for "county" preceding "court".

ANNOTATIONS

1. Authority of Commissioner.

Proceedings to administer Workmen's Compensation Act being wholly statutory, authority of Commissioner of Industries is limited to such powers as are conferred upon him by express legislative grant, or such as arise therefrom by implication as incidental and necessary to full exercise of powers granted, court being without authority to extend Commissioner's powers beyond such limits. DeGray v. Miller Brothers Construction Co., 106 Vt. 259, 173 A. 556 (1934).

Provisions in Workmen's Compensation Act as to duties of Commissioner of Industries with regard to hearings and determination of questions, and as to making of awards and right of appeal therefrom, clearly show that it was intent of Legislature that Commissioner of Industries should have original jurisdiction to hear and determine all controverted questions of fact and law arising in the administration of Act, except as otherwise provided. DeGray v. Miller Brothers Construction Co., 106 Vt. 259, 173 A. 556 (1934).

§ 604. Manner of trying causes; evidence.

The Commissioner shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure except as provided in this chapter, but he or she may make such investigation or inquiry or conduct such hearing or trial in such manner as to ascertain the substantial rights of the parties. Declarations of the deceased employee concerning his or her accident may be received in evidence and shall be sufficient to establish the accident and the injury, if corroborated by circumstances or other evidence.

History

Source. 1955, No. 181 . V.S. 1947, § 8058. P.L. § 6490. 1923, No. 105 , § 1. 1919, No. 158 . G.L. § 5761. 1917, No. 173 , § 10.

ANNOTATIONS

Analysis

1. Burden of proof.

In proceeding to obtain compensation for death of employee, burden of proof at outset is on claimant to establish such facts as are essential to recovery, including necessary relation between alleged employer and employee. Kelley's Dependents' v. Hoosac Lumber Co., 95 Vt. 50, 113 A. 818 (1921).

Where deceased was at time of accident performing work on alleged employer's premises, and for his benefit, prima facie case of ordinary employment was made out; and, when alleged employer sought to avoid liability on ground that alleged employee was independent contractor, he assumed burden of evidence on that point. Kelley's Dependents' v. Hoosac Lumber Co., 95 Vt. 50, 113 A. 818 (1921).

2. Evidence.

Although this section frees the Commissioner of common law and statutory rules of evidence, evidence must be material and the right of cross-examination preserved. 1952-54 Op. Atty. Gen. 219.

This section is not to be construed to permit admission of evidence and the use thereof as basis for finding against defendants, of finding by another court in cause in which they were not parties, had no interest, and were unable to be heard, when such finding was immaterial to issue therein involved and there had been no opportunity for cross-examination concerning such evidence. Belfore v. Vermont State Highway Department, 108 Vt. 396, 187 A. 797 (1936).

3. Applicable procedure.

Ordinary rules of procedure, except so far as modified by the act, apply to proceedings under the Workmen's Compensation Act. Kelley's Dependents v. Hoosac Lumber Co., 95 Vt. 50, 113 A. 818 (1921).

The common law and statutory rules of procedure and evidence are done away with in hearings before the Commissioner. Petraska v. National Acme Co., 95 Vt. 76, 113 A. 536 (1921).

Cited. Merrill v. Town of Ludlow, 147 Vt. 186, 514 A.2d 1050 (1986).

§ 605. Testimony of person without the State, how taken.

Upon the application of a party in a cause pending before him or her and on such notice to the adverse party or his or her attorney as he or she thinks reasonable, the Commissioner may issue a commission to a person designated by the Commissioner, to take the testimony of a person residing or being without the state. Such testimony shall be taken upon interrogatories settled by order of the Commissioner or upon oral examination, as he or she directs.

History

Source. V.S. 1947, § 8059. P.L. § 6491. 1923, No. 105 , § 1. 1919, No. 158 . G.L. § 5761. 1917, No. 173 , § 10.

§ 606. Determination of questions.

Questions arising under the provisions of this chapter, if not settled by agreement of the parties interested therein with the approval of the Commissioner, shall be determined, except as otherwise provided, by the Commissioner.

History

Source. V.S. 1947, § 8060. P.L. § 6492. G.L. § 5762. 1917, No. 171 , § 3. 1915, No. 164 , § 40.

ANNOTATIONS

Analysis

1. Jurisdiction.

Under the doctrine of primary jurisdiction, the trial court had jurisdiction to determine whether an employee had waived his right to bring suit against his employers by making a binding election to claim workers' compensation. The issue involved statutory construction, a pure question of law, and the Commissioner of Labor had no particular expertise in adjudicating that question. Smith v. Desautels, 183 Vt. 255, 953 A.2d 620 (Mar. 7, 2008).

The doctrine of primary jurisdiction applies to the administrative adjudication system established for workers' compensation. Travelers Indemnity Co. v. Wallis, 176 Vt. 167, 845 A.2d 316 (2003).

The Legislature has entrusted the administration of workers' compensation laws to the Commissioner, and the Commissioner necessarily has developed expertise in this administration; as a result, deference is given to the Commissioner's interpretation and application of workers' compensation laws. Travelers Indemnity Co. v. Wallis, 176 Vt. 167, 845 A.2d 316 (2003).

Commissioner had jurisdiction to entertain proceeding involving interpretation of certain provisions of Workmen's Compensation Act, where it did not appear that any other method was provided for hearing and determining questions raised. DeGray v. Miller Brothers Construction Co., 106 Vt. 259, 173 A. 556 (1934).

2. Construction.

The language "except as otherwise provided" in this section does not give an aggrieved party the option of pursuing a claim through the Declaratory Judgments Act. Demag v. American Insurance Cos., 146 Vt. 608, 508 A.2d 697 (1986); Wentworth v. Crawford & Co., 174 Vt. 118, 807 A.2d 351 (2002).

§ 607. Decisions; enforcement; appeals.

The decisions of the Commissioner shall be enforceable by the Superior Court under the provisions of section 675 of this title. From such a decision an appeal shall lie in the same manner as other appeals from the Commissioner. However, in no case shall such an appeal operate as a supersedeas or stay unless he, she, or the court to which such appeal is taken shall so order.

Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source. V.S. 1947, § 8061. P.L. § 6493. G.L. § 5762. 1917, No. 171 , § 3. 1915, No. 164 , § 40.

Amendments--1973 (Adj. Sess.). Substituted "Superior" for "county" preceding "Court" in the first sentence.

ANNOTATIONS

1. Enforcement.

Judgment of county court merely affirming the award of the Commissioner was wrong, as the latter cannot enforce his own awards or orders, and the judgment should show by its own terms what rights of parties are as juridically determined. Morgan v. Gould, 96 Vt. 275, 119 A. 517 (1923).

§ 608. Application of chapter when State not an employer.

The provisions of this chapter shall not be construed so as to make the State an employer where it only renders State aid to a municipality or approves of its plans or supervisors.

History

Source. V.S. 1947, § 8062. P.L. § 6494. 1927, No. 98 , § 4.

§ 609. Repealed. 1981, No. 165 (Adj. Sess.), § 7.

History

Former § 609. Former § 609, relating to rulemaking authority of the State Highway Board and the State Buildings Division, was derived from V.S. 1947, § 8063; 1947, No. 202 , § 8226; 1939, No. 182 , § 1; P.L. § 6495; 1927, No. 98 , § 5; and amended by 1959, No. 328 (Adj. Sess.), § 34a(a).

§ 610. Election by State as employer.

The provisions of this chapter relating to the State as an employer shall be deemed to be an election by the State where an election is required by the provisions of this chapter.

History

Source. V.S. 1947, § 8064. P.L. § 6496. 1933, No. 157 , § 6170. 1927, No. 98 , § 6.

§ 611. Repealed. 1977, No. 182 (Adj. Sess.), § 22, eff. May 3, 1978.

History

Former § 611. Former § 611, relating to money for state workmen's compensation, was derived from V.S. 1947, § 8065; 1939, No. 182 , § 2; P.L. § 6497; 1933, No. 157 , § 6171; 1927, No. 98 , § 7; and amended by 1959, No. 328 (Adj. Sess.), § 34a(b).

§§ 612-615. Repealed. 1973, No. 70, § 3.

History

Former §§ 612-615. Former § 612, relating to election to accept the provisions of this chapter, was derived from V.S. 1947, § 8066; P.L. § 6498; G.L. § 5763; 1915, No. 164 , § 1.

Former § 613, relating to contracts made subsequent to July 1, 1915, was derived from 1955, No. 136 ; V.S. 1947, § 8067; 1947, No. 202 , § 8230; P.L. § 6499; G.L. § 5765; 1917, No. 171 , § 3; 1915, No. 164 , § 1.

Former § 614, relating to defenses if employer did not elect to come under this chapter, was derived from V.S. 1947, § 8068; P.L. § 6500; G.L. § 5766; 1915, No. 164 , § 2.

Former § 615, relating to defenses if employee did not elect to come under this chapter, was derived from V.S. 1947, § 8069; P.L. § 6501; G.L. § 5767; 1915, No. 164 , § 3.

§ 616. Employments covered.

  1. Except as otherwise provided in this section and other provisions of this chapter, this chapter shall apply to all employment in this State, and where provided, to employment outside of the State.
  2. This chapter does not apply to employment in any case where the laws of the United States of America provide for compensation, by an employer to his or her employee, for injury or death in employment.  However, if jurisdiction is vested in this State under such laws, this chapter shall apply to the employment.

    Amended 1967, No. 51 ; 1973, No. 70 , § 2.

History

Source. 1955, No. 223 . 1951, No. 178 . V.S. 1947, § 8070. 1943, No. 125 , § 1. P.L. § 6502. 1923, No. 105 , § 2. G.L. § 5768. 1917, No. 171 , § 3. 1915, No. 164 , § 4.

Amendments--1973. Amended section generally.

Amendments--1967. Rewrote the former first sentence as the first and second sentences and substituted "two" for "five" preceding "employees" wherever it appeared.

Cross References

Cross references. Compensation for injuries received outside of State, see § 619 of this title.

Contracts to work outside of State, see § 623 of this title.

Worker hired outside of State, see § 620 of this title.

ANNOTATIONS

1. Conflict of laws.

Where employee was killed in Vermont in the course of his employment, was a resident of Vermont, and his wife and child were Vermont residents, this chapter could be applied to the exclusion of the law of Massachusetts, the state in which employment contract was made and in which employer had his place of business. Martin v. Furman Lumber Co., 134 Vt. 1, 346 A.2d 640 (1975).

Cited. Travelers Insurance Co. v. Evans, 101 Vt. 250, 143 A. 290 (1928); Cauchon v. Gladstone, 104 Vt. 357, 160 A. 254, 1940-42 Op. Atty. Gen. 258 (1932); Wolfe v. Yudichak, 153 Vt. 235, 571 A.2d 592 (1989).

§ 617. Repealed. 1969, No. 186 (Adj. Sess.), § 2.

History

Former § 617. Former § 617, relating to engaging in business without pecuniary gain, was derived from V.S. 1947, § 8071; P.L. § 6503; 1923, No. 105 , § 2; G.L. § 5768; 1917, No. 171 , § 3; 1915, No. 164 , § 4.

§ 618. Compensation for personal injury.

    1. If a worker receives a personal injury by accident arising out of and in the course of employment by an employer subject to this chapter, the employer or the insurance carrier shall pay compensation in the amounts and to the person hereinafter specified. The compensation of a person who is under guardianship shall be paid to the person's guardian. (a) (1)  If a worker receives a personal injury by accident arising out of and in the course of employment by an employer subject to this chapter, the employer or the insurance carrier shall pay compensation in the amounts and to the person hereinafter specified. The compensation of a person who is under guardianship shall be paid to the person's guardian.
    2. If the injury occurred while engaged off the premises of the employer in a recreational activity that is available to the employee as part of the employee's compensation package or as an inducement to attract employees, it shall not be considered to have occurred in the course of employment unless the Commissioner finds at least one of the following:
      1. The employer derived substantial benefit from the activity, beyond that of attracting labor or improving employee health and morale.
      2. The activity was reasonably part of the employee's regular duties or undertaken to meet the expectations of the employer.
      3. The activity was undertaken at the request of the employer.
    3. [Repealed.]
  1. A worker who receives a personal injury by accident arising out of and in the course of employment with an employer who has failed to comply with section 687 of this title may elect to claim compensation under this chapter or to bring a civil action against the employer for full damages resulting from the work injury. In the civil action the employer has the burden of proving that the injury did not result from the employer's negligence and that the employer's negligence was not the proximate cause of the injury. The employer may not plead as a defense any of the following:
    1. The injury was caused by the negligence of a fellow-employee.
    2. The defense provided under 12 V.S.A. § 1036 unless the negligence was willful and with the intent of causing an injury.
    3. The employee assumed any risk in the employment.
  2. A worker shall commence a civil action under subsection (b) of this section within the three-year limitation period as provided in 12 V.S.A. § 512(4) .
  3. The acceptance of any payment by an employee for a work injury shall not bar a subsequent election to pursue a civil suit under subsection (b) of this section unless the employee, with knowledge of his or her rights, signs a written agreement waiving the right to pursue a civil action. The agreement shall be filed with and approved by the Commissioner. If the employer fails to pay any amount due and owing under the workers' compensation act, the waiver agreement shall be void and the employee may pursue a civil action.
  4. Any employee who prevails in a civil action under subsection (b) of this section shall be entitled to costs, interest from the date of filing the claim, and reasonable attorney's fees.
    1. If an injured worker voluntarily consents in writing, the worker may be paid compensation benefits by means of direct deposit or an electronic prepaid benefit card account in accord with the requirements of section 342 of this title. (f) (1)  If an injured worker voluntarily consents in writing, the worker may be paid compensation benefits by means of direct deposit or an electronic prepaid benefit card account in accord with the requirements of section 342 of this title.
    2. The issuer of the card shall comply with all of the requirements, and provide the holder of the card with all of the consumer protections, that apply to a payroll card account under the rules implementing the Electronic Fund Transfer Act, 15 U.S.C. § 1693 et seq., as may be amended.
    3. An electronic prepaid benefit card account may be used only for weekly payment of temporary benefits and not for the payment of a lump sum award or for permanent benefits.
    4. The Commissioner, in consultation with the Commissioner of Financial Regulation, may adopt rules to implement this section.

      Amended 1981, No. 165 (Adj. Sess.), § 1; 1997, No. 19 , § 1; 1997, No. 59 , § 34a, eff. June 30, 1997; 1999, No. 85 (Adj. Sess.), § 2, eff. April 19, 2000; 2003, No. 132 (Adj. Sess.), § 9, eff. May 26, 2004; 2013, No. 6 , § 1.

History

Source. V.S. 1947, § 8072. P.L. § 6504. 1933, No. 157 , § 6178. 1923, No. 105 , § 2. G.L. §§ 5768, 5782. 1917, No. 171 , § 3. 1915, No. 164 , §§ 4, 13.

Amendments--2013. Subsec. (f): Added.

Amendments--2003 (Adj. Sess.) Subdiv. (a)(3): Deleted.

Amendments--1999 (Adj. Sess.). Subsec. (a): Designated the existing provisions as subdiv. (1) and substituted "the person's" for "his" preceding "guardian" in the second sentence of that subdivision and added subdivs. (2) and (3).

Amendments--1997 Act No. 19 designated the existing provisions of the section as subsec. (a) and substituted "under guardianship" for "insane" in the second sentence and made minor changes in phraseology in that subsection and added subsecs. (b)-(d).

Act No. 59 designated the existing provisions of the section as subsec. (a) and substituted "under guardianship" for "insane" in the second sentence and made minor changes in phraseology in that subsection and added subsecs. (b)-(e).

Amendments--1981 (Adj. Sess.). Substituted "worker" for "workman" preceding "receives" in the first sentence.

Purpose. 1999, No. 85 (Adj. Sess.), § 1, eff. April 19, 2000, provided: "The purpose of this act is to negate the effect of the Vermont Supreme Court decision in Grather v. The Gables Inn, Ltd. "

Controlling provisions - 1997, No. 59 1997, No. 59 , § 34b provides: "In the event of any inconsistency between the provisions of 21 V.S.A. § 618 as amended by Sec. 34a of this act and the provisions of 21 V.S.A. § 618 as amended by No. 19 of the Acts of 1997, the provisions of this act [1997, No. 59] shall control."

ANNOTATIONS

Analysis

1. Common law.

Right given to workmen's compensation is created by statute and is not a right existing at common law. Grenier v. Alta Crest Farms, Inc., 115 Vt. 324, 58 A.2d 884 (1948).

For workman to recover against his employer at common law for injury by accident arising out of his employment it must have been alleged and proved that employer's negligence was sole cause of injuries. Grenier v. Alta Crest Farms, Inc., 115 Vt. 324, 58 A.2d 884 (1948).

2. Nature of liability.

The burden placed upon the employer of compensating injured employees is only to the extent provided for in this chapter. Quinn v. Pate, 124 Vt. 121, 197 A.2d 795 (1964).

All liability under this chapter is based upon contract of hiring and there is no liability ex delicto. Norman v. American Woolen Co., 117 Vt. 28, 84 A.2d 125 (1951).

3. Mental injury.

Trial court erred in instructing the jury to determine whether plaintiff's stress was unusual as compared with the general population of employees, rather than with all other employees performing similar work. Crosby v. City of Burlington, 176 Vt. 239, 844 A.2d 722 (2003).

The Commissioner's standard for mental injury workers' compensation claims (i.e., in order for mental injury caused by stress at work to be compensable, a claimant must show that the stresses at work were of a significantly greater dimension than the daily stresses encountered by all employees) is supported by the following reasonable policy concerns: (1) a mental injury could have resulted from such diverse factors as social environment, culture, heredity, age, sex, family relationships, and other interpersonal relationship, as well as employment, a high degree of uncertainty exists in the diagnosis of cause; (2) greater objectivity is necessary in mental injury cases because the claimant's subjective impression that work-related stress caused her injury often forms the basis for the medical opinion that the injury was caused primarily by work-related stress; and (3) the Commissioner's standard protects against nondetectable fraudulent claims and prevents the conversion of workers' compensation into general health insurance. Bedini v. Frost, 165 Vt. 167, 678 A.2d 893 (1996).

While the Workers' Compensation Act does not expressly differentiate between physical and mental injuries, the Commissioner has properly adopted a standard that does so because of the greater uncertainty in the diagnosis of mental injuries than in the diagnosis of physical injuries. Bedini v. Frost, 165 Vt. 167, 678 A.2d 893 (1996).

4. Accident.

An injury need not be instantaneous to be accidental within the meaning of this section. Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 421 A.2d 1291 (1980).

Four to six weeks' exposure to intense fumes in the workplace is a sufficiently specific trauma to constitute an accident within the meaning of this section; the injury need not be a specific brief event. Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 421 A.2d 1291 (1980).

Where exposure to heavy paint and varnish fumes in the workplace aggravated chronic bronchitis and constituted a new injury to the mucosa lining the bronchial tubes, which caused severe swelling and fluid production that brought on rapid change from relatively stable chronic bronchitis to acute bronchitis, and where such injury in turn diminished heart's oxygen supply and brought on a myocardial infarction, there was a personal injury; and that exposure to fumes was over extended period of time did not keep what occurred from being an accident. Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 421 A.2d 1291 (1980).

The word "accident," as used in this section, means an unlooked-for mishap or an untoward event which is not expected or designed. Giguere v. E. B. & A. C. Whiting Co., 107 Vt. 151, 177 A. 313 (1935); Masterson v. Rutland Hospital, 129 Vt. 91, 271 A.2d 848 (1970), overruled on other grounds, Campbell v. Heinrich Savelberg, Inc. (1980) 139 Vt. 31, 421 A.2d 1291; Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 421 A.2d 1291 (1980).

Where workman, while in course of his employment, and performing his regular duties of lifting trays of fiber weighing from 40 to 65 pounds each, suffered a left inguinal hernia, which was first hernia he had ever had, the hernia thus suffered was an "injury by accident" within meaning of this section. Giguere v. E. B. & A. C. Whiting Co., 107 Vt. 151, 177 A. 313 (1935).

5. Foreseeability.

That accident causing injury to employee may not have been foreseen does not, under the circumstances, defeat claimant's right to workmen's compensation benefits. Labounty v. Lane Construction Corp., 111 Vt. 217, 13 A.2d 189 (1940).

6. Arising out of and in the course of employment - Generally .

In a workers' compensation case, remand was required when the Commissioner of Labor had failed to make findings of fact with regard to the expert testimony and had never clearly ruled on the crucial question of whether the claimant's injury arose out of and in the course of employment. McNally v. Dep't of PATH, 189 Vt. 515, 13 A.3d 656 (2010).

To have a compensable injury, workers' compensation claimant must prove both that accident (1) arose out of the employment, and (2) occurred in the course of the employment. Miller v. International Business Machines Corp., 161 Vt. 213, 637 A.2d 1072 (1993).

As there are no hard and fast rules to determine when an injury arises out of employment, the outcome of each case is determined only after taking all the facts and circumstances into account. Shaw v. Dutton Berry Farm, 160 Vt. 594, 632 A.2d 18 (1993).

Ordinarily, if an injury occurs during the course of employment, it also arises out of it, unless the circumstances are so attenuated from the condition of employment that the cause of the injury cannot reasonably be related to the employment; even if the worker's activity leading to the injury is not work per se, the causal connection is not necessarily broken. Shaw v. Dutton Berry Farm, 160 Vt. 594, 632 A.2d 18 (1993).

Rothfarb v. Camp Awanee, Inc., 116 Vt. 172, 176, 71 A.2d 569, 572 (1950), in which claimant was denied workers' compensation for injuries received in a fight in an employer provided bunkhouse, because at the time of the fight he was not engaged in any activity benefiting the employer, is overruled. Shaw v. Dutton Berry Farm, 160 Vt. 594, 632 A.2d 18 (1993).

An injury arises in the course of the employment when it occurs within the period of time when the employee was on duty at a place where the employee may reasonably be expected to be while fulfilling the duties of his employment contract. Marsigli's Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 197 A.2d 799 (1964); Moody v. Humphrey & Harding, Inc., 127 Vt. 52, 238 A.2d 646 (1968).

An injury arises out of an employment when it occurs in the course of it and as the proximate result of it and when an injury is a natural and necessary incident or consequence of the employment, though not foreseen or expected, it arises out of it. Rae v. Green Mountain Boys Camp, 122 Vt. 437, 175 A.2d 800 (1961).

To recover under this chapter, it is essential that workman receive a personal injury by accident arising out of and in the course of his employment. Greenfield v. Central Vermont Railway, 114 Vt. 440, 48 A.2d 854 (1946); Norman v. American Woolen Co., 117 Vt. 28, 84 A.2d 125 (1951).

*7. Factors considered.

For the purpose of analyzing whether an injury qualifies as an accidental personal injury arising out of and in the course of employment, claims have been divided into four general categories: (1) physical injury caused by physical stimulus; (2) physical injury caused by mental stimulus; (3) nervous injury caused by physical stimulus; and (4) nervous injury caused by mental stimulus. Crosby v. City of Burlington, 176 Vt. 239, 844 A.2d 722 (2003).

In determining whether injury arose out of and in the course of employment, nature, conditions, obligations and incidents of the employment all have bearing on proper determination of given case. Kenney v. Rockingham School District, 123 Vt. 344, 190 A.2d 702 (1963).

*8. Acts outside regular duties.

Act outside an employee's regular duties, which is undertaken in good faith to advance the employer's interest, whether or not employee's own assigned work is thereby furthered, is within course of employment. Kenney v. Rockingham School District, 123 Vt. 344, 190 A.2d 702 (1963).

The concept of "arising out of employment" includes acts normally outside the employment performed for the benefit of third persons, but the effect of which is to foster public good-will toward the master. Rae v. Green Mountain Boys Camp, 122 Vt. 437, 175 A.2d 800 (1961).

An injury is compensable under this section where it occurs while the employee is engaged in cultivating good will toward the employer's business by rendering some favor or service to a third person, where such act is in the interest of the employer. Rae v. Green Mountain Boys Camp, 122 Vt. 437, 175 A.2d 800 (1961).

*9. Mutual benefit.

Lodging employee was entitled to workers' compensation benefits for injury he received while skiing, since his ski pass was provided by his employer as part of his compensation and as an inducement for employment as a "ski bum," and thus employer received a benefit sufficient to bring employee's skiing within the course of his employment for workers' compensation purposes. Grather v. Gables Inn, Ltd., 170 Vt. 377, 751 A.2d 762 (2000).

Injury suffered by employee while performing act for mutual benefit of himself and his employer was compensable as arising out of and in the course of employment, even though advantage to employer was slight. Rothfarb v. Camp Awanee, Inc., 116 Vt. 172, 71 A.2d 569 (1950), overruled on other grounds, Shaw v. Dutton Berry Farm (1993) 160 Vt. 235, 632 A.2d 18.

*10. Place of accident.

As to employees having fixed hours and place of work, injuries occurring on the premises while they are going to and from work before or after working hours or at lunchtime are compensable under workers' compensation law. Miller v. International Business Machines Corp., 161 Vt. 213, 637 A.2d 1072 (1993).

Workers' compensation claimant's injury arose out of and in the course of employment when it occurred as a result of an automobile accident on a private road, owned by employer and providing access to its facilities, while claimant was leaving employer's premises during a lunch break. Miller v. International Business Machines Corp., 161 Vt. 213, 637 A.2d 1072 (1993).

In determining whether an injury arose out of and in the course of employment, it is of substantial significance that the accident occurred on the premises of the employer. Marsigli's Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 197 A.2d 799 (1964).

*11. Injuries away from workplace.

Workers' compensation claimant was put in a "positional-risk" situation when he was given a soda bottle at work that contained an industrial cleaning agent, which put the mechanism of his injury in motion; his consumption of the caustic chemicals several days later when he drank from the bottle at home followed logically from his receipt of the bottle of what he understood was a soft drink. Thus, his injury arose out of his employment, because but for his employment, the instrument of his injury would never have arrived in his hands. Cyr v. McDermott's, Inc., 187 Vt. 392, 996 A.2d 709 (2010).

Informal meeting held at the home of one of the trustees of claimant's employer, discussed in advance by several members of the board of trustees, which all employees were encouraged to attend, although without compensation, at which business, morale and personnel problems were a major topic of conversation, much of the remaining activity being social, was a meeting plaintiff attended in the course of her employment and where she was injured in auto accident while returning home from the meeting the injury arose out of and in the course of her employment and was thus compensable. Holmquist v. Mental Health Services, 139 Vt. 1, 420 A.2d 108 (1980).

Where, at meeting at house of member of board of trustees of employer of claimant, the work of claimant and interests of employer were furthered, employee attendance was encouraged as there were business, morale and personnel problems, and attendance of claimant was in good faith, it would not be said that injury claimant received while on the way home from the meeting did not arise out of and in the course of employment because there was not a formal meeting with formal request for attendance, with expenses and compensation paid by employer and with attendance being a job requirement. Holmquist v. Mental Health Services, 139 Vt. 1, 420 A.2d 108 (1980).

*12. Time of accident.

Where a servant employed with his team of horses was killed by it about the noon hour, after he had eaten his dinner, while attempting to stop the team which was running away, the accident arose out of and in the course of his employment. Brown v. Bristol Last Block Co., 94 Vt. 123, 108 A. 922 (1920).

*13. Horseplay.

In a workers' compensation case, where, during a lull between customers in a retail store, claimant began firing staples with a staple gun at a co-worker, and the co-worker fired staples back at claimant, one of which staples hit claimant in the eye, the injury did not occur in the "course of employment." Clodgo v. Rentavision, Inc., 166 Vt. 548, 701 A.2d 1044 (1997).

Where claimant was injured while at work as result of horseplay by fellow employee on another shift, who was trespasser in plant at time of accident, and where it was found by commissioner that claimant met with accident as result of being exposed, by reason of such fellow employee's presence, to additional risk incident to his employment and within reasonable contemplation of employer, claimant was injured by accident arising out of and in the course of his employment. Myott v. Vermont Plywood, Inc., 110 Vt. 131, 2 A.2d 204 (1938).

14. Sex discrimination.

Employer's policy - under which workers with nonwork-related long-term disabilities that rendered them unable to substantially perform their responsibilities were placed on disability leave at fifty percent of salary, as opposed to workers with work-related disabilities, who were encouraged to accept accommodations, including alternative work, and who received full pay - did not specifically condition any employment or benefit rule on pregnancy and was facially neutral and affected pregnant women because their temporary disability, and those of others both male and female, was not work related. This policy distinction is fundamentally rooted in the workers' compensation laws. Lavalley v. E.B. & A.C. Whiting Co., 166 Vt. 205, 692 A.2d 367 (1997).

15. Outside course of employment.

There is no statutory duty upon an employer to provide compensation to an employee who may have received injuries outside of the occupation in which the injured employee is engaged for that particular employer. Quinn v. Pate, 124 Vt. 121, 197 A.2d 795 (1964).

An employee does not forfeit his right to recover compensation where the injury occurs during an incidental trip not strictly connected with the employer's business. Marsigli's Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 197 A.2d 799 (1964).

When employee broke continuity of his employment for purposes of his own and was injured before he brought himself back into the line of his employment, injury was not incidental to his employment as arising from a work condition or environment. Rothfarb v. Camp Awanee, Inc., 116 Vt. 172, 71 A.2d 569 (1950), overruled on other grounds, Shaw v. Dutton Berry Farm (1993) 160 Vt. 235, 632 A.2d 18.

Where highway employee, when quitting work for day, found it impossible to reach his room on account of high water, and as a consequence went to a boarding house, 75 or 80 rods distant from his place of work, which during the night such house was carried away by a flood, causing his death by drowning, the accident causing his death did not arise out of and in course of his employment, notwithstanding that, but for his having been required to work on that day, he would have been in place of safety. Bundy v. Vermont Highway Department, 102 Vt. 84, 146 A. 68 (1929).

Where teamster who owned pair of horses and had been engaged to draw logs of employer from wood lot for distance of four miles to employer's mill at specified rate per thousand feet, without agreement to haul any specific quantity or to work for any definite time, received injuries, resulting in his death, while engaged in cleaning off one of horses known by him to be vicious, preparatory to commencing his day's work, the accident did not arise out of or in course of his employment. Kneeland v. Parker, 100 Vt. 92, 135 A. 8 (1926).

16. Intentional injury.

Exception to the workers' compensation exclusivity rule for an injury other than accident did not apply here, because even if defendant employer rendered a personal-fall-arrest system useless by removing the D ring and preventing plaintiff from attaching a harness to an anchor point, the record did not permit the inference that the employer deliberately intended to harm plaintiff. Martel v. Connor Contracting, Inc., 208 Vt. 498, 200 A.3d 160 (2018).

Workers' compensation claimant's injury, caused by the unprovoked stabbing by another employee in an employer provided bunkhouse after work, arose from employment as a matter of law. Shaw v. Dutton Berry Farm, 160 Vt. 594, 632 A.2d 18 (1993).

The only type of injury which falls outside the scope of this section is one in which there is a specific intent on employer's part to injure the workman. Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 417 A.2d 926 (1980).

17. Wanton or willful acts.

Wanton and willful acts and omissions of an employer leading to an employee's injury do not take the injury outside of the scope of this section. Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 417 A.2d 926 (1980).

18. Preexisting condition.

Mental injury claimants with preexisting conditions can still receive workers' compensation, but they, like all mental injury claimants, must show that the work-related stress was greater than that experienced by all employees. Bedini v. Frost, 165 Vt. 167, 678 A.2d 893 (1996).

Aggravation or acceleration of pre-existing condition can constitute a personal injury by accident within the meaning of this section. Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 421 A.2d 1291 (1980).

Medical testimony in workmen's compensation proceeding was sufficient to support jury finding that paint and varnish fumes in the workplace caused aggravation of bronchitis and caused myocardial infarction where two doctors testified that to a reasonable degree of medical certainty the fumes caused change from chronic to acute bronchitis and that the diminished oxygen supply caused by the aggravated bronchial condition probably resulted in the death of part of the heart muscle and the myocardial infarction. Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 421 A.2d 1291 (1980).

If expert medical evidence establishes a causal connection between the results of the injury incurred in performance of the work for which the employee was hired, and an aggravation or acceleration of the existing disease, the award must stand, even though it be true that the disease, if left to itself, would in time inevitable produce death. Marsigli's Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 197 A.2d 799 (1964).

19. Burden of proof.

A purpose of this chapter is to establish an expedient, efficient remedy for injured workers, and the mechanism by which efficiency is achieved is by simplifying the elements of recovery, so that to be entitled to benefits out of and in the course of his employment by an employer subject to this chapter, and he need not show that the employer was negligent or that he actually suffered a wage loss. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

Workmen's compensation claimant has burden of showing causal connection between accident causing the injury and his employment. Lapan v. Berno's Inc., 137 Vt. 393, 406 A.2d 390 (1979).

Burden is on claimant, seeking benefits under this chapter, to establish facts essential to right asserted. Goodwin v. Fairbanks, Morse & Co., 123 Vt. 161, 184 A.2d 220 (1962).

Claimant has burden of showing causal connection between accident which caused his injury and his employment. Greenfield v. Central Vermont Railway, 114 Vt. 440, 48 A.2d 854 (1946); Rothfarb v. Camp Awanee, Inc., 116 Vt. 172, 71 A.2d 569 (1950), overruled on other grounds, Shaw v. Dutton Berry Farm (1993) 160 Vt. 235, 632 A.2d 18.

Claimant has burden of showing that decedent's death was caused by compensable injury. Greenfield v. Central Vermont Railway, 114 Vt. 440, 48 A.2d 854 (1946).

Burden is on plaintiff to show, not only that injury was accident, but that accident arose out of and in the course of the injured workman's employment. Brown v. Bristol Last Block Co., 94 Vt. 123, 108 A. 922 (1920).

20. Evidence.

Commissioner of Labor properly found that an injury was compensable. The opinion of the claimant's treating surgeon was based on facts; the claimant's testimony was properly considered; and the fact that the Commissioner found shortcomings in both expert opinions did not mean that the claimant could not prevail. Houle v. Ethan Allen, Inc., 190 Vt. 536, 24 A.3d 586 (2011).

Where Commissioner found that fall from truck while working was not the cause of workmen's compensation claimant's disability, consisting of lower back pain, and no other incident at work was introduced into evidence, and medical testimony failed to establish that injury was attributable to employment and merely indicated such a possibility, and injury was obscure and a layman could have had no well-grounded opinion as to its causation, so that expert testimony was the sole means of laying a foundation for an award, causal connection between employment and injury was not established and judgment that continuous heavy lifting at work aggravated existing degenerative changes in claimant's back to point where he became disabled and that amounted to a personal injury accident which arose out of and in the course of employment must be reversed. Lapan v. Berno's Inc., 137 Vt. 393, 406 A.2d 390 (1979).

In proceeding for workmen's compensation, attending physician's report made three days after claimant allegedly tripped over a rock and was injured while on the job, stating that claimant had walked fast for two miles three weeks prior to the examination, and suffered pain after that, was competent evidence upon which lower court could find that claimant failed to show by the requisite burden of proof that her complaints arose out of and in the course of her employment. Hurwitz v. Camp Derry, Inc., 134 Vt. 306, 360 A.2d 53 (1976).

In proceeding to obtain workmen's compensation for back injury sustained by mason, evidence revealed that mason, while bending over as required by his job, felt as if "something was pulling (his) back apart" and that pain became so great that he had to quit work, sustained finding that mason had sustained an injury in course of and arising out of his employment and was sufficient to make out a prima facie case for an award. Moody v. Humphrey Harding, Inc., 127 Vt. 52, 238 A.2d 646 (1968).

Where the physical processes terminating in death are obscure, competent expert medical testimony is required to remove the final decision from the realm of speculation. Marsigli's Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 197 A.2d 799 (1964).

Unless other evidence in case fairly warrants finding of causation or excludes all other causes, conclusion based upon medical evidence of "possibility" would be entirely speculative. Burton v. Holden & Martin Lumber Co., 112 Vt. 17, 20 A.2d 99 (1941).

Evidence of man 61 years old in normal health having localized infection from sliver in his thumb and within short time dying of cerebral thrombosis, with no evidence as to its cause or nature other than that infection could possibly have caused the disease and death. Burton v. Holden & Martin Lumber Co., 112 Vt. 17, 20 A.2d 99 (1941).

Where claimant was found suffering from cerebral hemorrhage near gate which it was his duty to close, and only medical testimony was that such hemorrhage might occur without any physical exercise on part of claimant, award of compensation was error, since laymen could have no well-grounded opinion due to obscure nature of injury, and only expert medical testimony could lay foundation for award. Laird v. State Highway Department, 110 Vt. 195, 3 A.2d 552 (1939).

21. Admiralty jurisdiction.

Where decedent, who was engaged as a chauffeur and to care for and work on a motor boat in navigable waters of Lake Champlain, was drowned while trying to retrieve a rowboat, he was engaged in a maritime activity, even though his duties were predominantly on shore, and this section did not apply. St. John v. Thomson, 108 Vt. 66, 182 A. 196 (1936).

22. Recovery in other state.

Where employee was fatally injured in Vermont while working under a contract made in Connecticut, and his dependent widow elected to apply for and accepted compensation under Connecticut Workmen's Compensation Act, such election discharged employer from any obligation to pay her compensation under this section, and also discharged insurance carrier from obligation to pay her compensation under this section, since obligation assumed by it was obligation of employer to pay under provisions of Vermont law. DeGray v. Miller Brothers Construction Co., 106 Vt. 259, 173 A. 556 (1934).

23. Construction with other laws.

The purpose of Vt. Const. ch. II, art. 70, authorizing compensation laws, was to insulate pending workers' compensation laws from constitutional attack, not to prevent workers from obtaining benefits based on psychological injuries. Crosby v. City of Burlington, 176 Vt. 239, 844 A.2d 722 (2003).

Summary judgment was denied on an employee's claim that an insurer acted in bad faith in denying a claim for workers' compensation benefits where there were issues of fact as to whether the employee's injury was work-related under 21 V.S.A. § 618(a)(1), and whether insurer knowingly and recklessly mishandled the employee's workers' compensation claim. Buote v. Verizon New Eng., 249 F. Supp. 2d 422 (D. Vt. 2003).

Because an employer can take actions against an employee, producing mental injury and motivated in part by unlawful discrimination, without having the specific intent to injure the employee, it was not inconsistent for plaintiff to claim that he was injured by an accident for workers' compensation purposes and to also claim he was injured by unlawful discrimination. Gallipo v. City of Rutland, 173 Vt. 223, 789 A.2d 942 (2001).

24. Waiver of right to pursue civil action.

Nowhere does the workers' compensation subsection dealing with an employee's waiver of the right to pursue a civil action indicate that it is limited to voluntary payments. Indeed, it specifically applies to "any payment." Smith v. Desautels, 183 Vt. 255, 953 A.2d 620 (Mar. 7, 2008).

In order to deprive an employee of his right to sue, there must be strict compliance with the explicit requirements of the workers' compensation statute regarding waiver of the right to bring a civil action. Smith v. Desautels, 183 Vt. 255, 953 A.2d 620 (Mar. 7, 2008).

Although the Legislature passed the section of the workers' compensation statute regarding waiver of the right to bring a civil action to protect the worker's election remedy, an employer is still able to force an election by the worker as long as it is knowing and voluntary pursuant to the terms of the statute. Thus, before making any compensation payments, whether voluntarily or under the direction of the Department of Labor, the employer can insist that the worker waive the right to sue. Smith v. Desautels, 183 Vt. 255, 953 A.2d 620 (Mar. 7, 2008).

25. Offset.

Employer could offset the sick wages paid to a workers' compensation claimant during a period of temporary total disability against the workers' compensation disability benefits it was ordered to pay for the same period. The claimant received all statutory disability benefits to which he was entitled; the ban against assignment was inapposite; and the employer's offset-credit policy did not compromise in any way the claimant's opportunity to seek attorney's fee reimbursement. Yustin v. Dep't of Pub. Safety, 189 Vt. 618, 19 A.3d 611 (2011).

Cited. Morrisseau v. Legac, 123 Vt. 70, 181 A.2d 53 (1962); Wade v. Johnson Controls, Inc., 693 F.2d 19 (2d Cir. 1982); Wolfe v. Yudichak, 153 Vt. 235, 571 A.2d 592 (1989); Gerrish v. Savard, 169 Vt. 468, 739 A.2d 1195 (1999).

Law review commentaries

Law review. The compensability of mental injuries, see 8 Vt. L. Rev. 145 (1983).

§ 619. Injuries outside State.

If a worker who has been hired in this State receives personal injury by accident arising out of and in the course of such employment, he or she shall be entitled to compensation according to the law of this State even though such injury was received outside this State.

Amended 1981, No. 165 (Adj. Sess.), § 1.

History

Source. V.S. 1947, § 8073. P.L. § 6506. G.L. § 5770. 1915, No. 164 , § 42.

Amendments--1981 (Adj. Sess.). Substituted "worker" for "workman" preceding "who has been".

Cross References

Cross references. Contracts to work outside state, see § 623 of this title.

ANNOTATIONS

1. Recovery in other state.

Where employee of construction company was fatally injured in Vermont while working under contract made in Connecticut, and his dependent widow applied for and received compensation under Connecticut Workmen's Compensation Act, she was estopped from recovering compensation for same injury under compensation act of Vermont. DeGray v. Miller Brothers Construction Co., 106 Vt. 259, 173 A. 556 (1934).

§ 620. Worker hired outside State.

If a worker who has been hired outside this State is injured while engaged in his or her employer's business and is entitled to compensation for such injury under the law of the state where he or she was hired, he or she shall be entitled to enforce against his or her employer his or her rights in this State, if his or her rights are such that they can be reasonably determined and dealt with by the Commissioner and the court in this State.

Amended 1981, No. 165 (Adj. Sess.), § 1.

History

Source. V.S. 1947, § 8074. P.L. § 6507. G.L. § 5771. 1917, No. 171 , § 3. 1915, No. 164 , § 42.

Amendments--1981 (Adj. Sess.). Substituted "Worker" for "Workman" preceding "hired" in the catchline and "who has been" in the text.

ANNOTATIONS

Analysis

1. Application of foreign law.

When employer and employee elected to come within provisions of Massachusetts Workmen's Compensation Act and insurer voluntarily assumed duty of paying compensation to employees of employer in accordance with provision therein contained, all were bound by its terms. Grenier v. Alta Crest Farms, Inc., 115 Vt. 324, 58 A.2d 884 (1948).

2. Construction.

Statute applying to workers hired outside of Vermont does not entitle persons neither employed nor hired in Vermont to benefits under Vermont's workers' compensation statues, but rather requires the Commissioner of Labor to apply the workers' compensation schemes of other states in certain circumstances. Letourneau v. A.N. Deringer/Wausau Ins. Co., 184 Vt. 422, 966 A.2d 133 (2008).

3. Particular Cases.

When a worker was neither employed nor hired in Vermont, the statute applying to workers hired outside of Vermont did not entitle him to transfer his New York workers' compensation case to Vermont and begin claiming Vermont benefits. That does not mean, however, that the Commissioner of Labor lacked jurisdiction to take his case; rather, the Commissioner and the trial court should have questioned whether his rights under New York law could be reasonably determined and dealt with in Vermont. Letourneau v. A.N. Deringer/Wausau Ins. Co., 184 Vt. 422, 966 A.2d 133 (2008).

Creation of a right "to enforce rights in this State" in the statute applying to workers hired outside of Vermont does not entitle workers not employed or hired in Vermont to Vermont workers' compensation benefits, but rather gives those workers the right to utilize Vermont's administrative and court systems to enforce their entitlement to benefits under other schemes - namely, the schemes of the states where they were hired. The question of whether workers' compensation benefits can reasonably be determined and dealt with in Vermont is a practical one that asks to what extent the Department of Labor and Vermont's courts can apply the laws of other states and administer benefits through their schemes. Letourneau v. A.N. Deringer/Wausau Ins. Co., 184 Vt. 422, 966 A.2d 133 (2008).

Cited. DeGray v. Miller Brothers Construction Co., 106 Vt. 259, 173 A. 556 (1934).

§ 621. Interstate commerce.

The provisions of this chapter shall affect the liability of employers to employees engaged in interstate or foreign commerce or otherwise only so far as the same is permissible under the laws of the United States.

History

Source. V.S. 1947, § 8075. P.L. § 6508. G.L. § 5772. 1915, No. 164 , § 56.

ANNOTATIONS

Analysis

1. Federal statutes.

If employee of railroad, at time of accident, is employed in interstate commerce, his claim for compensation is under the federal Employer's Liability Act, and state statute does not apply. Lawrence v. Rutland Railroad, 112 Vt. 523, 28 A.2d 488 (1942), certiorari denied, 317 U.S. 693, 63 S. Ct. 434, 87 L. Ed. 555 (1943).

2. Admiralty jurisdiction.

Where deceased, employed as chauffeur and to care for motor boat in navigable waters of Lake Champlain, was drowned while attempting to retrieve a rowboat, he was engaged in maritime activity even though most of his duties were on shore, and act had no application. St. John v. Thomson, 108 Vt. 66, 182 A. 196 (1936).

3. Jurisdiction of commissioner.

Commissioner had no jurisdiction to make an award under the Vermont Workmen's Compensation Act, where employee was engaged in interstate commerce. 1936-38 Op. Atty. Gen. 283.

Cited. Holmberg v. Brent, 161 Vt. 153, 636 A.2d 333 (1993).

§ 622. Right to compensation exclusive.

Except as provided in subsection 618(b) and section 624 of this title, the rights and remedies granted by the provisions of this chapter to an employee on account of a personal injury for which he or she is entitled to compensation under the provisions of this chapter shall exclude all other rights and remedies of the employee, the employee's personal representatives, dependents, or next of kin, at common law or otherwise on account of such injury.

Amended 1997, No. 19 , § 2.

History

Source. V.S. 1947, § 8076. P.L. § 6509. G.L. § 5774. 1915, No. 164 , § 7.

Amendments--1997 Added "except as provided in subsec. 618(b) and section 624 of this title" at the beginning of the section and substituted "the employee, the employee's personal" for "such employee, his personal" preceding "representatives".

Cross References

Cross references. Dual liability, see § 624 of this title.

ANNOTATIONS

Analysis

1. Constitutionality.

The denial of loss of consortium claims under the exclusivity provision of the workers' compensation statute violates the common benefits clause of the Vermont Constitution; there is no rational basis for allowing an injured employee to bring a tort action against a third party while denying a loss of consortium claim by the employee's spouse. Lorrain v. Ryan, 160 Vt. 202, 628 A.2d 543 (1993).

Employee who received workers' compensation settlement was not denied a remedy under law because his negligence suit against his employer was barred by this section; he was denied only particular common law remedy he sought. Sienkiewycz v. Dressell, 151 Vt. 421, 561 A.2d 415 (1989).

2. Construction with other laws.

The exclusivity provision of the workers' compensation statute does not bar recovery for underinsured motorists (UIM) benefits from a self-insured employer because, as an employer, the company is also an insurer bound to provide UIM coverage on its motor vehicles and, when the employee seeks UIM payments from the employer, the employee is enforcing the employer's statutory obligation to provide UIM coverage irrespective of the method of insurance. Colwell v. Allstate Insurance Co., 175 Vt. 61, 819 A.2d 727 (2003).

Employer had no obligation to provide automobile liability insurance with respect to fellow employees who were already covered by workers' compensation. Davis v. Liberty Mutual Insurance Co., 19 F. Supp. 2d 193 (D. Vt. 1998), aff'd, 267 F.3d 124 (2d Cir. 2001).

Where State employee who received workers' compensation benefits for injuries sustained while performing his duties brought a negligence action against co-employees alleging that they failed to provide him with a safe and defect-free motor vehicle with which to perform his job, State's obligation under 3 V.S.A. §§ 1101-1104 to defend State employees did not make plaintiff's case into a suit against the State which would be barred by this section. Libercent v. Aldrich, 149 Vt. 76, 539 A.2d 981 (1987).

The 1959 amendment to section 624 of this title restored common law liability in favor of injured employee when injury is caused under circumstances where legal liability resides in stranger to contract of employment, even though employee may have received compensation under this chapter. Ryan v. New Bedford Cordage Co., 421 F. Supp. 794 (D. Vt. 1976), affirmed, 559 F.2d 1206 (2d Cir. 1977).

To extent that provisions of this section making workmen's compensation exclusive remedy of injured employees are inconsistent with 1959 amendment to section 624 of this title, which restored common law liability in favor of injured employee against stranger to employment contract, even though injured workman may have received compensation under this chapter, provisions of amendment must prevail. Ryan v. New Bedford Cordage Co., 421 F. Supp. 794 (D. Vt. 1976), affirmed, 559 F.2d 1206 (2d Cir. 1977).

Where liability of a general contractor to injured employees of an independent subcontractor is conditional, imposed by law in event subcontractor fails to secure compensation under this chapter, such contingent liability does not establish relationship of employer and employee between injured workmen and general contractor to shield general contractor, under this section, from liability under section 624 of this title. Ryan v. New Bedford Cordage Co., 421 F. Supp. 794 (D. Vt. 1976), affirmed, 559 F.2d 1206 (2d Cir. 1977).

3. Exception.

When defendant sold its assets to a second company and plaintiff began working for the second company, plaintiff had no relationship with defendant beyond that of a former employee. Thus, when plaintiff was injured two years later while using a switch designed by defendant, he was not injured "in the course of his employment" with defendant, and defendant was not his employer for purposes of workers' compensation exclusivity, but was "some person other than the employer." Hemond & Hemond v. Frontier Communications of Am., Inc., 192 Vt. 646 (mem.), 59 A.3d 766 (2012).

With regard to whether plaintiff's claim was barred by the exclusivity provision of the Workers' Compensation Act, it was premature to grant summary judgment on the issue of the exceptions for intent or substantial certainty. Not only were the facts alleged by plaintiff susceptible to competing inferences, but defendant also conceded that material facts - whether a hard guard on a press existed and, if it did, whether it was removed from the press - remained in dispute. Stamp Tech, Inc. v. Lydall/Thermal Acoustical, Inc., 186 Vt. 369, 987 A.2d 292 (2009).

Because the exclusivity provision of the workers' compensation statute is limited to employee claims against employers, it did not apply to the adjudication of a claim for the reimbursement or return of benefits. Gallipo v. City of Rutland, 178 Vt. 244, 882 A.2d 1177 (July 29, 2005).

Because plaintiff's negligence complaint against defendant, a firm hired by her employer to provide her with vocational rehabilitation benefits after a workplace injury, set forth facts alleging that her economic injury occurred during her rehabilitation and resulted from defendant's failure to fulfill its obligation to provide her with training and job placement services, this section did not apply to her claim because her injury was not compensable under the Workers' Compensation Act. Wentworth v. Crawford & Co., 174 Vt. 118, 807 A.2d 351 (2002).

As a general rule, workers' compensation is the exclusive remedy for workplace injuries, but there is an exception to the exclusivity rule: when a compensable injury is caused under circumstances creating a legal liability in a person other than the employer, such as a co-employee, an injured employee may seek recovery from that third party. Dunham v. Chase, 165 Vt. 543, 674 A.2d 1279 (mem.) (1996).

4. Derivative claims.

The exclusivity provision of the workers' compensation statute bars an employee's tort recovery only with respect to claims against the employer. Lorrain v. Ryan, 160 Vt. 202, 628 A.2d 543 (1993).

Since an injured employee would be barred under this section from bringing a tort action against employer's workers' compensation carrier, a derivative loss of consortium claim is similarly barred. Derosia v. Book Press, Inc., 148 Vt. 217, 531 A.2d 905 (1987).

5. Action against employer's insurer.

This section does not bar an employee from bringing a tort action against her employer's workers' compensation insurer for negligence in undertaking an active safety inspection and loss prevention program. Pratt v. Liberty Mutual Insurance Co., 952 F.2d 667 (2d Cir. 1992).

6. Employment in violation of law.

Trial court properly applied this section to bar personal injury action of minor injured in employment-related accident with lawn tractor, where, although employee's operation of machine was in violation of federal law, there was no Vermont statute disfavoring employment of minors to operate lawn tractors. Bruley v. Fonda Group, Inc., 157 Vt. 1, 595 A.2d 269 (1991).

7. Indemnity.

Where there was an express indemnity contract between employer of injured employee and tortfeasor, indemnification by tortfeasor against employer was not barred by this section. New England Telephone & Telegraph Co. v. Central Vermont Public Service Corp., 391 F. Supp. 420 (D. Vt. 1975).

8. Contribution.

The exclusivity of workers' compensation bars contribution by an employer in an action by an employee against a third party for work-related injuries. Hiltz v. John Deere Industrial Equipment Co., 146 Vt. 12, 497 A.2d 748 (1985).

9. Burden of proof.

With certain exceptions, Vermont's Fair Employment Practices Act (FEPA) is patterned on Title VII of the Civil Rights Act of 1964, and the standards and burdens of proof under FEPA are identical to those under Title VII. Fernot v. Crafts Inn, Inc., 895 F. Supp. 668 (D. Vt. 1995).

Mere allegation that minor's employment was illegal could not be used to find that this chapter did not bar minor's action against employer because illegality of employment made this section inapplicable, as minor had to prove the allegation. Wisell v. Jorgensen, 136 Vt. 604, 398 A.2d 283 (1979).

10. Employer.

The State was the statutory employer of plaintiff who was injured while working for a trucking firm that had a contract to load and deliver merchandise for the Vermont Department of Liquor Control and was therefore immune from his negligence claim. Edson v. State, 175 Vt. 330, 830 A.2d 671 (2002).

Defendant, who owned the premises and carried on the business where plaintiff worked and who supervised plaintiff's work and had the power to replace her if her work proved unsatisfactory, was plaintiff's "employer" under 21 V.S.A. § 601(3), even though plaintiff received her pay and benefits from her direct employer, a temporary placing agency, which had contracted with defendant to provide the service; therefore, defendant, as "employer" under the statute, was immune from plaintiff/employee's common-law negligence suit under the Workers' Compensation Act's employer-immunity provision, 21 V.S.A. § 622. Candido v. Polymers, Inc., 166 Vt. 15, 687 A.2d 476 (1996).

11. Employer's acts.

In connection with the exception to the exclusivity rule for intentional injuries committed by the employer, nothing short of a specific intent to injure falls outside the scope of the act. Mead v. Western Slate, Inc., 176 Vt. 274, 848 A.2d 257 (2004).

Even though defendants were negligent in exposing plaintiff to the known risk of a rock fall, there was no evidence from which a jury could reasonably infer that defendants knew the injury to plaintiff was substantially certain to occur, and the evidence also failed to demonstrate misconduct by defendants evidencing a knowing and willful disregard of risks that made injury to plaintiff a substantial certainty. Mead v. Western Slate, Inc., 176 Vt. 274, 848 A.2d 257 (2004).

Superior Court erred in applying this section to bar plaintiff's Vermont Fair Employment Practices Act action against employer where, as of the time the Court acted, there had been no decision that plaintiff was entitled to workers' compensation, and the employer was arguing that he was not so entitled. Gallipo v. City of Rutland, 173 Vt. 223, 789 A.2d 942 (2001).

Doctrine of election of remedies did not preclude plaintiff from filing both a workers' compensation claim and a civil action, subject to an eventual determination of which remedy was appropriate if they proved to be inconsistent. Gallipo v. City of Rutland, 173 Vt. 223, 789 A.2d 942 (2001).

Plaintiff's receipt of interim workers' compensation benefits did not prevent him from suing his employer. Gallipo v. City of Rutland, 173 Vt. 223, 789 A.2d 942 (2001).

Vermont Fair Employment Practices Act actions are not barred by the exclusivity provision of the Workers' Compensation Act. Gallipo v. City of Rutland, 173 Vt. 223, 789 A.2d 942 (2001).

An employer may be subject to liability under exception to exclusive remedy provision of workers' compensation statute, if employer acted in capacity of a co-employee in negligently causing accident. Gerrish v. Savard, 169 Vt. 468, 739 A.2d 1195 (1999).

Employer was not subject to liability as a co-employee where he allegedly modified crane which subsequently injured plaintiff; employer was exercising managerial prerogatives and not merely taking place of a worker, and his actions came within scope of an employer's nondelegable duty to provide a safe workplace and safe tools and equipment. Gerrish v. Savard, 169 Vt. 468, 739 A.2d 1195 (1999).

This section barred recovery in suit against employer brought on theory that employee's injury was attributable to acts of his employer while performing as a fellow employee. Sienkiewycz v. Dressell, 151 Vt. 421, 561 A.2d 415 (1989).

Wanton and willful acts and omissions of an employer leading to an employee's injury do not take the injury outside of the scope of this chapter so as to allow a suit against employer at common law. Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 417 A.2d 926 (1980).

12. Claims for intentional infliction of emotional distress.

Vermont Workers' Compensation Act does not bar claims of intentional infliction of emotional distress as a matter of law, although such a claim may well fail on the facts. Goodstein v. Bombardier Capital, Inc., 889 F. Supp. 760 (D. Vt. 1995).

13. Supervisors.

Nondelegable duty to provide a safe workplace applies to co-employee supervisors who are not owners or officers because the supervisory employee is the representative of the employer and a double recovery, worker's compensation and tort damages, is not permitted. Thus, a defendant can be acting as the employer even though he is not an owner or officer of the employer corporation. Garger v. Desroches, 185 Vt. 634, 974 A.2d 597 (mem.) (2009).

Employee's negligence suit against a co-employee supervisor who ordered him to drive an all-terrain vehicle up a steep incline was barred by the exclusivity provision of the Workers' Compensation Act. The nondelegable duty to provide a safe workplace applied to co-employee supervisors who were not owners or officers; the supervisor's negligence was not a breach of a duty separate from the employer's nondelegable duty to provide a safe workplace; and the employee had not alleged that the supervisor had a specific intent to injure or knew with substantial certainty that injury would result. Garger v. Desroches, 185 Vt. 634, 974 A.2d 597 (mem.) (2009).

14. Omissions versus affirmative acts.

With regard to the exclusivity provision of the Workers' Compensation Act, any distinction between omissions and affirmative acts is not relevant to the question of whether a defendant is performing a nondelegable duty of the employer. As long as a corporate duty is in issue, immunity exists whether the officer fails to discharge it or actually does so in a negligent manner; this issue turns on the nature of the duty that the plaintiff alleges is breached, and not the extent of the defendant's participation in the act. Garger v. Desroches, 185 Vt. 634, 974 A.2d 597 (mem.) (2009).

Cited. Wlock v. Fort Dummer Mills, 98 Vt. 449, 129 A. 311 (1925); Levin v. Rouille, 110 Vt. 126, 2 A.2d 196 (1938); Johnson v. Fisher, 131 Vt. 382, 306 A.2d 696 (1973); Furlon v. Haystack Mountain Ski Area, Inc., 136 Vt. 266, 388 A.2d 403 (1978); Wade v. Johnson Controls, Inc., 693 F.2d 19 (2d Cir. 1982); King v. Snide, 144 Vt. 395, 479 A.2d 752 (1984); Derosia v. Duro Metal Products Co., 147 Vt. 410, 519 A.2d 601 (1986); Demag v. American Insurance Cos., 146 Vt. 608, 508 A.2d 697 (1986); Wolfe v. Yudichak, 153 Vt. 235, 571 A.2d 592 (1989); Carter v. Fred's Plumbing & Heating, Inc., 174 Vt. 572, 816 A.2d 1280 (mem.) (2002); Vella v. Hartford Vt. Acquisitions, Inc., 176 Vt. 151, 838 A.2d 126 (2003).

§ 623. Contracts to work outside State.

Employers who hire workers within this State to work outside the State may agree with such workers that the remedies under the provisions of this chapter shall be exclusive as regards injuries received outside this State by accident arising out of and in the course of such employment. All contracts of hiring in this State shall be presumed to include such an agreement.

Amended 1981, No. 165 (Adj. Sess.), § 1.

History

Source. V.S. 1947, § 8077. P.L. § 6510. G.L. § 5774. 1915, No. 164 , § 7.

Amendments--1981 (Adj. Sess.). Substituted "workers" for "workmen" following "hire" and "such" in the first sentence.

§ 624. Dual liability; claims, settlement procedure.

  1. Where the injury for which compensation is payable under the provisions of this chapter was caused under circumstances creating a legal liability to pay the resulting damages in some person other than the employer, the acceptance of compensation benefits or the commencement of proceedings to enforce compensation payments shall not act as an election of remedies, but the injured employee or the employee's personal representative may also proceed to enforce the liability of such third party for damages in accordance with the provisions of this section. If the injured employee or the employee's personal representative does not commence the action within one year after the occurrence of the personal injury, then the employer or its insurance carrier may, within the period of time for the commencement of actions prescribed by statute, enforce the liability of the third party in the name of the injured employee or the employee's personal representative. Not less than 30 days before the commencement of suit by any party under this section, the party shall notify, by registered mail at their last known address, the Commissioner, the injured employee, or in the event of death, the employee's known dependents, or personal representative or known next of kin, the employee's employer, and the workers' compensation insurance carrier. Any party in interest shall have a right to join in the suit but the direction and control of the suit shall be with the injured employee.
  2. Prior to entry of judgment, either the employer or the employer's insurance carrier or the employee or the employee's personal representative may settle their claims as their interest shall appear and may execute releases therefor, but the consent of the employer, or, if insured, the insurance carrier, shall be required, if the amount of the settlement by the employee or the employee's personal representative is less than the compensation benefits that would have been payable in the future but for the provisions of this section.
  3. The settlement and release by the employee shall not be a bar to action by the employer or its insurance carrier to proceed against the third party for any interest or claim it might have.
  4. In the event the injured employee or personal representative settle the claim for injury or death, or commence proceedings thereon against the third party before the payment of workers' compensation, the recovery or commencement of proceedings shall not act as an election of remedies and any monies so recovered shall be applied as provided in this section.
    1. In an action to enforce the liability of a third party, the injured employee may recover any amount that the employee or the employee's personal representative would be entitled to recover in a civil action. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or its workers' compensation insurance carrier for any amounts paid or payable under this chapter to date of recovery, and the balance shall forthwith be paid to the employee or the employee's dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payment of compensation benefits. Reimbursement required under this subsection, except to prevent double recovery, shall not reduce the employee's recovery of any benefit or payment provided by a plan or policy that was privately purchased by the injured employee, including uninsured-underinsured motorist coverage, or any other first party insurance payments or benefits. (e) (1)  In an action to enforce the liability of a third party, the injured employee may recover any amount that the employee or the employee's personal representative would be entitled to recover in a civil action. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or its workers' compensation insurance carrier for any amounts paid or payable under this chapter to date of recovery, and the balance shall forthwith be paid to the employee or the employee's dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payment of compensation benefits. Reimbursement required under this subsection, except to prevent double recovery, shall not reduce the employee's recovery of any benefit or payment provided by a plan or policy that was privately purchased by the injured employee, including uninsured-underinsured motorist coverage, or any other first party insurance payments or benefits.
    2. Should the recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, be less than the full value of the claim for personal injuries or death, the reimbursement to the employer or workers' compensation insurance carrier shall be limited to that portion of the recovery allocated for damages covered by the Workers' Compensation Act. If a court has not allocated or the parties cannot agree to the allocation of the recovered damages, either party may request that the Commissioner make an administrative determination. Upon receiving a request, the Commissioner shall order mediation with a mediator selected from a list approved by the Commissioner. If mediation is unsuccessful, the Commissioner may adjudicate the dispute or refer the dispute to an arbitrator approved by the Commissioner. The determination of the Commissioner or of an arbitrator approved by the Commissioner shall be final. The cost of any mediation or arbitration shall be split equally by the parties.
  5. Expenses of recovery shall be the reasonable expenditures, including attorney's fees, incurred in effecting the recovery. Attorney's fees, unless otherwise agreed upon, shall be divided among the attorneys for the plaintiff as directed by the court. The expenses of recovery shall be apportioned by the court between the parties as their interests appear at the time of the recovery.
  6. Compensation benefits referred to in this section shall in each instance include but not be limited to all expenses incurred under sections 639 and 640 of this title.
  7. The injured employee or the employee's personal representative shall be prohibited from commencing a civil action to enforce liability against the workers' compensation insurance carrier for conducting workplace inspections, or an employer-employee safety committee except in the case of gross negligence or willful misconduct. The employee or the employee's personal representative shall have the burden of proving gross negligence or willful misconduct.
  8. The Commissioner, by rule, may require workers' compensation carriers to conduct periodic workplace inspections and to provide other safety related advice to their insureds.
  9. The Commissioner shall determine, by rule, workplaces where an insured has demonstrated an unusually poor safety record, as defined by the Commissioner.
  10. Employers with unusually poor safety records, as defined by the Commissioner, shall create workplace safety committees with balanced representation between management and employees and, with the assistance of the Department, shall design and implement written accident prevention plans that shall be distributed to all employees. The Department shall issue bulletins of best safety practices.

    Amended 1959, No. 232 ; 1977, No. 182 (Adj. Sess.), § 2, eff. May 3, 1978; 1981, No. 165 (Adj. Sess.), § 1; 1993, No. 225 (Adj. Sess.), § 3; 1997, No. 140 (Adj. Sess.), § 2; 1999, No. 41 , § 4; 2003, No. 132 (Adj. Sess.), § 15, eff. May 26, 2004; 2013, No. 199 (Adj. Sess.), § 65, eff. June 24, 2014; 2017, No. 74 , § 39; 2017, No. 113 (Adj. Sess.), § 148.

History

Source. V.S. 1947, § 8078. P.L. § 6511. G.L. § 5775. 1915, No. 164 , § 8.

Revision note. At the end of the first sentence of subsec. (e), substituted "a civil action" for "an action in tort" to conform reference to V.R.C.P. 2 pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments--2017 (Adj. Sess.) Subsec. (d): Deleted "herein" following "be applied as" and added "in this section" following "provided".

Amendments--2017. Subsec. (f): Deleted "above mentioned" following "recovery" in the third sentence.

Amendments--2013 (Adj. Sess.). Subdiv. (e)(1): Substituted "uninsured-underinsured" for "uninsured-under insured" following "by the injured employee, including".

Subdivision (e)(2): Added.

Amendments--2003 (Adj. Sess.) Subsecs. (j), (k): Added.

Amendments--1999. Subsection (e): Added the third sentence.

Amendments--1997 (Adj. Sess.). Added subsec. (i).

Amendments--1993 (Adj. Sess.). Subsec. (a): Inserted "to pay the resulting damages" following "liability", deleted "to pay damages in respect thereof" preceding "the acceptance" and substituted "commencement" for "taking" following "benefits or the" in the first sentence and substituted "employee" for "plaintiff" following "injured" in the fourth sentence and made other minor changes in phraseology throughout the subsection.

Subsec. (b): Made minor changes in phraseology.

Subsec. (d): Deleted "his" preceding "personal" and substituted "the" for "their" preceding "claim" and "workers" for "workmen's" preceding "compensation".

Subsec. (e): Substituted "injured employee" for "plaintiff" following "party, the" in the first sentence and "workers" for "workmen's" preceding "compensation insurance" in the second sentence and made minor changes in phraseology throughout the subsection.

Subsec. (h): Added.

Amendments--1981 (Adj. Sess.). Substituted "workers" for "workmen's" preceding "compensation" wherever it appeared.

Amendments--1977 (Adj. Sess.). Designated existing provisions of section as subsecs. (a)-(g), deleted "compensation" preceding "insurance carrier" in the second sentence of subsec. (a) and in subsec. (c), "of industrial relations" following "commissioner" in the third sentence of subsec. (a) and "shall" preceding "settle" in subsec. (d).

Amendments--1959. Amended section generally.

Cross References

Cross references. Limitation of actions for personal injuries generally, see 12 V.S.A. § 512.

ANNOTATIONS

Analysis

1. Construction.

Plaintiff may not maintain an action against an employer-employee safety committee or its employer and employee members for gross negligence or willful misconduct. This construction of the statute, which states: "The injured employee or the employee's personal representative shall be prohibited from commencing a civil action to enforce liability against the workers' compensation insurance carrier for conducting workplace inspections, or an employer-employee safety committee except in the case of gross negligence or willful misconduct," is contrary to its plain language, but absent more explicit direction from the Legislature, a court cannot apply the plain meaning of the statute without contravening other statutory provisions. Chayer v. Ethan Allen, Inc., 183 Vt. 439, 954 A.2d 783 (Apr. 11, 2008).

2. Historical.

The 1959 amendment to this section restored common law liability in favor of injured employee when injury is caused under circumstances where legal liability resides in stranger to contract of employment, even though employee may have received compensation under the Workmen's Compensation Act. Ryan v. New Bedford Cordage Co., 421 F. Supp. 794 (D. Vt. 1976), affirmed, 559 F.2d 1206 (2d Cir. 1977).

3. Constitutionality.

The denial of loss of consortium claims under the exclusivity provision of the workers' compensation statute violates the common benefits clause of the Vermont Constitution; there is no rational basis for allowing an injured employee to bring a tort action against a third party while denying a loss of consortium claim by the employee's spouse. Lorrain v. Ryan, 160 Vt. 202, 628 A.2d 543 (1993).

4. Construction with other laws.

The exclusivity provision of the workers' compensation statute does not bar recovery for underinsured motorists (UIM) benefits from a self-insured employer because, as an employer, the company is also an insurer bound to provide UIM coverage on its motor vehicles and, when the employee seeks UIM payments from the employer, the employee is enforcing the employer's statutory obligation to provide UIM coverage irrespective of the method of insurance. Colwell v. Allstate Insurance Co., 175 Vt. 61, 819 A.2d 727 (2003).

An employer may be subject to liability under exception to exclusive remedy provision of workers' compensation statute, if employer acted in capacity of a co-employee in negligently causing accident. Gerrish v. Savard, 169 Vt. 468, 739 A.2d 1195 (1999).

Employer was not subject to liability as a co-employee where he allegedly modified crane which subsequently injured plaintiff; employer was exercising managerial prerogatives and not merely taking place of a worker, and his actions came within scope of an employer's nondelegable duty to provide a safe workplace and safe tools and equipment. Gerrish v. Savard, 169 Vt. 468, 739 A.2d 1195 (1999).

This section does not conflict with 21 V.S.A. § 699; if their provisions are interpreted harmoniously, this section presents a complete and logical apportionment of risks, costs, and benefits, under various accident scenarios, among the employee injured in an accident, the workers' compensation carrier, and the employer's private liability insurer. Travelers Cos. v. Liberty Mutual Insurance Co., 164 Vt. 368, 670 A.2d 827 (1995).

It is clear that, within this section, "third party" means a party who is not (1) the workers' compensation carrier, (2) the injured worker, or (3) the employer, notwithstanding that in many other contexts an agreement between an insurer and an insured would be described as one between first and second parties, with the phrase "third party" referring to one who was a stranger to the contract. Travelers Cos. v. Liberty Mutual Insurance Co., 164 Vt. 368, 670 A.2d 827 (1995).

Because the State's general obligation to defend its employees under the provisions of 3 V.S.A. §§ 1101-1104 arises independently of its liability under this chapter, third-party actions between fellow state employees do not contravene the plain language of subsection (a) of this section. Libercent v. Aldrich, 149 Vt. 76, 539 A.2d 981 (1987).

To extent that provisions of section 622 of this title, making workmen's compensation exclusive remedy of injured employees, are inconsistent with 1959 amendment to this section which restores common law liability in favor of injured employee against stranger to employment contract, even though injured workman may have received compensation under this chapter, provisions of amendment must prevail. Ryan v. New Bedford Cordage Co., 421 F. Supp. 794 (D. Vt. 1976), affirmed, 559 F.2d 1206 (2d Cir. 1977).

Where liability of a general contractor to injured employees of an independent subcontractor is conditional, imposed by law in event subcontractor fails to secure compensation under this chapter, such contingent liability does not establish relationship of employer and employee between injured workmen and general contractor to shield general contractor, under section 622 of this title, from liability under this section. Ryan v. New Bedford Cordage Co., 421 F. Supp. 794 (D. Vt. 1976), affirmed, 559 F.2d 1206 (2d Cir. 1977).

This section and section 657 of this title, extending time for giving notice of claim where action has been brought through mistake of fact or law and final judgment is against the employee, are sufficiently cognate to be in pari materia and are to be construed with reference to each other as parts of one system to ascertain the legislative intent. Belfore v. Vermont State Highway Department, 108 Vt. 396, 187 A. 797 (1936).

5. Purpose.

The purpose of this section is to preserve the injured workman's common law action against third party wrongdoers, subject only to his employer's subrogation for compensation benefits awarded to the workman. Dubie v. Cass-Warner Corp., 125 Vt. 476, 218 A.2d 694 (1966).

6. Law governing.

In an action brought in Vermont, the distribution of a negligence award between employee and employer's insurer was to be governed by Connecticut workers' compensation law where the employee had chosen to receive benefits for the injury giving rise to the action in Connecticut, and, although the Connecticut workers' compensation law required the employee to absorb the full expense of recovery alone, being less generous than this section, the Connecticut statutory scheme generally effected the same policies as this section, and its application did not give rise to a violation of the public policy of Vermont. LaBombard v. Peck Lumber Co., 141 Vt. 619, 451 A.2d 1093 (1982).

7. Third parties.

When defendant sold its assets to a second company and plaintiff began working for the second company, plaintiff had no relationship with defendant beyond that of a former employee. Thus, when plaintiff was injured two years later while using a switch designed by defendant, he was not injured "in the course of his employment" with defendant, and defendant was not his employer for purposes of workers' compensation exclusivity, but was "some person other than the employer." Hemond & Hemond v. Frontier Communications of Am., Inc., 192 Vt. 646 (mem.), 59 A.3d 766 (2012).

As a general rule, workers' compensation is the exclusive remedy for workplace injuries, but there is an exception to the exclusivity rule: when a compensable injury is caused under circumstances creating a legal liability in a person other than the employer, such as a co-employee, an injured employee may seek recovery from that third party. Dunham v. Chase, 165 Vt. 543, 674 A.2d 1279 (mem.) (1996).

Although a corporate officer defendant may be subject to co-employee liability for those negligent acts or omissions that breach a personal rather than a nondelegable corporate duty owed to a plaintiff employee, plaintiff employee must show that the duty owed by defendant was a personal duty, not simply a corporate duty to maintain a safe workplace. Dunham v. Chase, 165 Vt. 543, 674 A.2d 1279 (mem.) (1996).

The exclusivity provision of the workers' compensation statute bars an employee's tort recovery only with respect to claims against the employer. Lorrain v. Ryan, 160 Vt. 202, 628 A.2d 543 (1993).

The express language of subsection (a) of this section does not allow a loss of consortium claim by the spouse of an injured employee against a third party. Derosia v. Book Press, Inc., 148 Vt. 217, 531 A.2d 905 (1987).

A co-worker is "some person other than the employer" for purposes of the dual liability provision of this section. Libercent v. Aldrich, 149 Vt. 76, 539 A.2d 981 (1987).

A company's principal owner is ordinarily not liable in a workman's negligence suit for damages caused by work-related injury as he is entitled to all the statutory defenses of the employer with regard to exclusivity of remedy provided by workmen's compensation insurance. Steele v. Eaton, 130 Vt. 1, 285 A.2d 749 (1971).

This chapter, which provides a statutory remedy that is exclusive as against employer, does not preclude an employee from bringing an action for negligence against a fellow employee who caused the injury. Herbert v. Layman, 125 Vt. 481, 218 A.2d 706 (1966), overruled on other grounds, Whitney v. Fisher (1980) 138 Vt. 468, 417 A.2d 934, cert. denied, 510 U.S. 947, 114 S. Ct. 388, 126 L. Ed. 2d 336 (1993).

Employee who accepts workmen's compensation is not thereby barred from bringing an action against his fellow employee as a "third party" within the meaning of this section. Herbert v. Layman, 125 Vt. 481, 218 A.2d 706 (1966), overruled on other grounds, Whitney v. Fisher (1980) 138 Vt. 468, 417 A.2d 934, cert. denied, 510 U.S. 947, 114 S. Ct. 388, 126 L. Ed. 2d 336 (1993).

8. State employees.

State employee who received workers' compensation benefits for injuries sustained while performing his duties as a state employee had a right to maintain a negligence action against his co-employees to test his allegations that they failed to provide him with a safe and defect-free motor vehicle with which to perform his job, and the fact that plaintiff was a public rather than a private employee did not alter this right, although the suit could be precluded if the co-employees were protected by official immunity. Libercent v. Aldrich, 149 Vt. 76, 539 A.2d 981 (1987).

9. Insurers.

As an insured under the insured's employer's policy, an employee had a contractual right to receive benefits directly from his employer's insurer. It was the insured's direct right to claim UIM benefits, as an insured under the employer-purchased policy, that conferred first-party status to him respecting such benefits. It is precisely this contractual relationship to UIM proceeds addressed by the 1999 amendment of this section. Travelers Insurance Company v. Henry, 178 Vt. 287, 882 A.2d 1133 (June 24, 2005).

Under this section, an insurer's right to an offset against the balance of an employee's UIM proceeds for future benefits owed, like its right to recoup benefits paid, existed only to the extent necessary to prevent a double recovery. Travelers Insurance Company v. Henry, 178 Vt. 287, 882 A.2d 1133 (June 24, 2005).

This section does not confer absolute immunity on employer's workers' compensation insurer when insurer undertakes to perform a safety inspection of the workplace; therefore, employee may bring action against insurer for injury resulting from insurer's negligent safety inspection. Derosia v. Duro Metal Products Co., 147 Vt. 410, 519 A.2d 601 (1986).

A workmen's compensation insurer ordinarily stands in insured's shoes and is not ordinarily liable in negligence to a person injured while working for insured. Steele v. Eaton, 130 Vt. 1, 285 A.2d 749 (1971).

10. Notice.

This section requires that neither the employee nor the subrogee who has paid him shall proceed against a third party wrongdoer without notice to the other, the purpose of which is to permit such other to intervene to protect his interest in the controversy. Dubie v. Cass-Warner Corp., 125 Vt. 476, 218 A.2d 694 (1966).

Provision of this section requiring that employee or his subrogee give Commissioner notice of impending action against third party wrongdoer is not a jurisdictional requirement. Dubie v. Cass-Warner Corp., 125 Vt. 476, 218 A.2d 694 (1966).

Requirement of this section that either employee or his subrogee give registered mail notice to the other of an impending action against a third party wrongdoer is for the benefit of the other claimant who does not institute the action and may be waived by the other, in which event failure to give such notice does not bar the action against the third party wrongdoer. Dubie v. Cass-Warner Corp., 125 Vt. 476, 218 A.2d 694 (1966).

11. Negligence.

Negligence of employer which was independent of any negligence imputable to it as a result of conduct of employee barred recovery from third party of workmen's compensation paid. New England Telephone & Telegraph Co. v. Central Vermont Public Service Corp., 391 F. Supp. 420 (D. Vt. 1975).

Acts of negligence toward worker for which principal owner of company could be held responsible were not those for which a master or employer would be responsible under respondeat superior, but rather, had to be acts in which he participated or cooperated or specifically directed others to do. Steele v. Eaton, 130 Vt. 1, 285 A.2d 749 (1971).

Principal owner of corporation was not liable in negligence to workmen injured in area where required safety guard on machinery was not being used, even though owner knew guard was not in use, where owner did not actually and immediately participate in the injury. Steele v. Eaton, 130 Vt. 1, 285 A.2d 749 (1971).

12. Receipt of benefits.

Receipt of workmen's compensation benefits has no relevance with respect to an employee's right to sue a third party tortfeasor pursuant to this section. Dubie v. Cass-Warner Corp., 125 Vt. 476, 218 A.2d 694 (1966).

13. Subrogation.

Employer's workers' compensation insurer was acting within the law when it placed a lien on employee's recovery from fellow employee's personal automobile liability insurer, and therefore there was no factual basis for employee's bad faith claim against workers' compensation insurer. Davis v. Liberty Mutual Insurance Co., 19 F. Supp. 2d 193 (D. Vt. 1998), aff'd, 267 F.3d 124 (2d Cir. 2001).

This section permits subrogation to the extent necessary to recoup the compensation paid by the employer or its compensation carrier to the injured employee, together with expenses of recovery. Herbert v. Layman, 125 Vt. 481, 218 A.2d 706 (1966), overruled on other grounds, Whitney v. Fisher (1980) 138 Vt. 468, 417 A.2d 934, cert. denied, 510 U.S. 947, 114 S. Ct. 388, 126 L. Ed. 2d 336 (1993).

Employer who has paid workmen's compensation to employee injured through negligence of third person is subrogated to employee's right against third-person, and action may be brought in employee's name. Merchant v. Unity Real Estate Co., 286 F.2d 629 (2d Cir. 1961).

This section gives the employer subrogation to the extent necessary to recoup the compensation he is forced to pay. Canadian Pacific Railway v. Morin, 54 F.2d 246 (2d Cir. 1931).

14. Damages .

When an injured employee recovers damages under an employer-purchased insurance policy, or any other first-party insurance policy, the settling parties, or the trial court, must apportion the award between economic and noneconomic damages; workers' compensation benefits reflect an employee's economic losses. Travelers Insurance Company v. Henry, 178 Vt. 287, 882 A.2d 1133 (June 24, 2005).

In suit by injured employee against third party, the wrongdoer is not entitled to a credit for compensation payments received by workman. Dubie v. Cass-Warner Corp., 125 Vt. 476, 218 A.2d 694 (1966).

15. Reimbursement.

Workers' compensation carrier cannot seek reimbursement from life-insurance payments because such proceeds are not "damages," as contemplated by the reimbursement statute, paid because of a third party's tortious actions. Estate of Dunn v. Windham Northeast Supervisory Union, 192 Vt. 504, 60 A.3d 680 (2012).

Taking the statutory language of the workers' compensation reimbursement statute as a whole, a workers' compensation carrier is entitled to reimbursement only when a claimant or a claimant's estate receives money for damages because of a third party's responsibility for an injury. This is the case whether the claimant receives payment directly from the tortfeasor or, as happens frequently, from the third party's own liability insurer. Estate of Dunn v. Windham Northeast Supervisory Union, 192 Vt. 504, 60 A.3d 680 (2012).

Given the wording of the workers' compensation reimbursement statute, it is clear that the circumstances causing the injury must be the circumstances that create the liability to compensate it; this is to say, the statute necessarily refers to a cause of action an employee may maintain against a person responsible for her injuries. Indeed, the statute permits an employer or its carrier to commence such an action on behalf of the injured employee if the employee does not do so herself within a year. Estate of Dunn v. Windham Northeast Supervisory Union, 192 Vt. 504, 60 A.3d 680 (2012).

Workers' compensation reimbursement statute does not permit a workers' compensation insurer to tap a claimant's life-insurance proceeds for reimbursement because the proceeds of that particular type of first-party policy do not constitute damages paid because of a third party's action. Thus, an insurer was not entitled to reimbursement from life insurance proceeds for death benefits it had paid to a claimant's estate. Estate of Dunn v. Windham Northeast Supervisory Union, 192 Vt. 504, 60 A.3d 680 (2012).

There is no indication that the Legislature in the workers' compensation reimbursement statute intended to deviate from the normal legal meaning of "damages." Estate of Dunn v. Windham Northeast Supervisory Union, 192 Vt. 504, 60 A.3d 680 (2012).

For purposes of determining whether a workers' compensation insurer is entitled under 21 V.S.A. § 624(e) to reimbursement from proceeds that an employee receives under underinsured motorist (UIM) policies, (1) the UIM award is apportioned fairly and reasonably between noneconomic and economic damages; (2) the noneconomic portion of the award is necessarily excluded from reimbursement as there can be no possibility of double recovery; (3) the economic portion of the UIM award must be added to the benefits received under workers' compensation to determine whether the combined amount exceeds the employee's total economic damages; and (4) to the extent that the combined amount exceeds the employee's total economic damages, the insurer must be reimbursed that amount to prevent double recovery. Travelers Ins. Co. v. Henry, 470 F.3d 56 (2d Cir. 2006).

Under 21 V.S.A. § 624(e), the proceeds of an underinsured motorist (UIM) policy that was purchased by an employee and the proceeds of an employer-purchased UIM policy did not have to be used to reimburse a workers' compensation insurer except to the extent necessary to prevent double recovery, and reimbursement from the economic portion of the employee's UIM awards was permitted only to the extent necessary to prevent actual double recovery. Travelers Ins. Co. v. Henry, 470 F.3d 56 (2d Cir. 2006).

Economic damages recoverable by the workers' compensation insurer include those awarded for lost wages, diminished earning capacity, medical expenses, vocational rehabilitative services, and in the case of the employee's death, burial and funeral expenses, and wage replacement paid to a surviving spouse, dependent children, or other dependents. If the employee recovers such damages and has already been compensated for these losses by the insurer, the insurer is entitled to reimbursement to prevent a double recovery. Travelers Insurance Company v. Henry, 178 Vt. 287, 882 A.2d 1133 (June 24, 2005).

Damages that the employee recovers under a first-party insurance policy, including compensation for pain and suffering and other related non-monetary injuries, are considered noneconomic damages. Because workers' compensation does not compensate an employee for such losses, there is no danger of a double recovery, and the insurer is not entitled to reimbursement from this portion of the employee's award. Travelers Insurance Company v. Henry, 178 Vt. 287, 882 A.2d 1133 (June 24, 2005).

A workers' compensation carrier has no right to reimbursement from, nor a future credit against, UIM proceeds that an employee recovers under an employer-purchased automobile liability policy, except to prevent a double recovery. To determine whether a double recovery has occurred, the nature and extent of an injured employee's damages must first be determined. The employee must then reimburse the workers' compensation carrier out of the economic damages portion of his UIM award. Travelers Insurance Company v. Henry, 178 Vt. 287, 882 A.2d 1133 (June 24, 2005).

Under the plain language of this section, an employee's recovery of UIM proceeds under an automobile liability policy purchased by the employer is a "first party insurance payment or benefit" that is not subject to the workers' compensation carrier's right to reimbursement except to prevent a double recovery. Travelers Insurance Company v. Henry, 178 Vt. 287, 882 A.2d 1133 (June 24, 2005).

Although, where an injured employee by law cannot recover economic losses from a third party, her workers' compensation carrier should likewise not be entitled to recoup its losses from the injured employee; where an injured employee may recover both economic and noneconomic damages from a third party, the plain language of subsection (e) controls, and the workers' compensation carrier may recoup its compensation award from any recovery (economic and/or noneconomic) obtained in a third-party suit. Brunet v. Liberty Mutual Insurance Group, 165 Vt. 315, 682 A.2d 487 (1996).

Where injured Vermont employee was not entitled under New York law to recover economic losses from driver of other vehicle, in personal injury action in New York, employer's worker's compensation carrier would likewise not be entitled to recoup its losses from employee, and subsection (e) of this section, governing reimbursement of worker's compensation carriers, would be read to mean carrier could recover any amount of economic losses employee would be entitled to recover. St. Paul Fire & Marine Insurance Co. v. Surdam, 156 Vt. 585, 595 A.2d 264 (1991).

Reimbursement to the employer under subsection (e) of this section is not restricted to circumstances creating a legal liability for injury to the employee solely in some other person. Hiltz v. John Deere Industrial Equipment Co., 146 Vt. 12, 497 A.2d 748 (1985).

16. Real party in interest .

There was no merit to a cleaning service's argument that a worker who brought a third-party action against it was no longer a real party in interest after she settled her workers' compensation claim with her employer. Although the employer or its insurance carrier would, after the settlement, have had a right to reimbursement from any recovery the worker made in her claim against the cleaning service, the worker remained an interested party; any amount recovered beyond the amount due to the employer as reimbursement would have been hers as an advance on future workers' compensation payments, and any amount greater than the sum of past and future workers' compensation payments would be hers alone. Smedberg v. Detlef's Custodial Service, Inc., 182 Vt. 349, 940 A.2d 674 (Sept. 21, 2007).

Because the workers' compensation statute explicitly authorized injured employees to proceed against third parties, a worker who brought suit against a third party was a real party in interest, and the fact that the statute allowed an employer to be reimbursed from recoveries awarded to employees did not compel a different result. Smedberg v. Detlef's Custodial Service, Inc., 182 Vt. 349, 940 A.2d 674 (Sept. 21, 2007).

17. Safety committees.

Absent a statutory definition imbuing employer-employee safety committees with an independent legal status, they are simply a subpart of the employer and they comprise individuals: either employees or employers. Moreover, as their name implies, such committees are presumably charged with performing the employer's nondelegable duty to maintain a safe workplace. Chayer v. Ethan Allen, Inc., 183 Vt. 439, 954 A.2d 783 (Apr. 11, 2008).

18. Co-employees.

Plaintiff, who had been injured at work, was not entitled to recover against defendant co-employees because even if a complete personal-fall-arrest system (PFAS) was not available to plaintiff on the date of his injuries, and even assuming the co-employees negligently removed PFAS components, these facts still did not fall outside the scope of the nondelegable duty to provide a safe workplace and safe equipment for an employee. Martel v. Connor Contracting, Inc., 208 Vt. 498, 200 A.3d 160 (2018).

Worker's allegations against his co-employees for negligence stated nothing beyond a breach of the employer's nondelegable duty to maintain a safe workplace. As this duty inured to the employer alone, and could not be delegated, the trial court properly dismissed the workers' claims against the co-employees. Chayer v. Ethan Allen, Inc., 183 Vt. 439, 954 A.2d 783 (Apr. 11, 2008).

19. Supervisors.

Nondelegable duty to provide a safe workplace applies to co-employee supervisors who are not owners or officers because the supervisory employee is the representative of the employer and a double recovery, worker's compensation and tort damages, is not permitted. Thus, a defendant can be acting as the employer even though he is not an owner or officer of the employer corporation. Garger v. Desroches, 185 Vt. 634, 974 A.2d 597 (mem.) (2009).

Employee's negligence suit against a co-employee supervisor who ordered him to drive an all-terrain vehicle up a steep incline was barred by the exclusivity provision of the Workers' Compensation Act. The nondelegable duty to provide a safe workplace applied to co-employee supervisors who were not owners or officers; the supervisor's negligence was not a breach of a duty separate from the employer's nondelegable duty to provide a safe workplace; and the employee had not alleged that the supervisor had a specific intent to injure or knew with substantial certainty that injury would result. Garger v. Desroches, 185 Vt. 634, 974 A.2d 597 (mem.) (2009).

Cited. Davis v. Central Vermont Railway, 95 Vt. 180, 113 A. 539 (1921); Travelers Insurance Co. v. Evans, 101 Vt. 250, 143 A. 290 (1928); Owens v. Lane Construction Co., 105 Vt. 421, 168 A. 549 (1933); Laird v. State of Vermont Highway Department, 112 Vt. 67, 20 A.2d 555 (1941); Medlar v. Aetna Insurance Co., 127 Vt. 337, 248 A.2d 740 (1968); Perry v. Johnson, 131 Vt. 350, 306 A.2d 680 (1973); Utica Mutual Insurance Co. v. Central Vermont Railway, 133 Vt. 292, 336 A.2d 200 (1975); Furlon v. Haystack Mountain Ski Area, Inc., 136 Vt. 266, 388 A.2d 403 (1978); Derosia v. Liberty Mutual Insurance Co., 155 Vt. 178, 583 A.2d 881 (1990); Holmberg v. Brent, 161 Vt. 153, 636 A.2d 333 (1993); Vella v. Hartford Vt. Acquisitions, Inc., 176 Vt. 151, 838 A.2d 126 (2003); Feeley v. Allstate Insurance Co., 178 Vt. 642, 882 A.2d 1230 (mem.) (August 17, 2005).

§ 625. Contracting out forbidden.

An employer shall not be relieved in whole or in part from liability created by the provisions of this chapter by any contract, rule, regulation, or device whatsoever.

Amended 1963, No. 134 , § 1, eff. June 6, 1963.

History

Source. V.S. 1947, § 8079. P.L. § 6512. G.L. § 5776. 1915, No. 164 , § 9.

Amendments--1963. Deleted "or" following "chapter".

ANNOTATIONS

1. Independent business.

Where plaintiff's employer at time of accident was engaged in carrying on an independent business of his own, and there was nothing in findings to show that his contract with defendant for the purchase of edgings produced in defendant's manufacturing plant was a scheme to evade liability by the defendant, plaintiff could not recover of defendant under this section. Blake v. American Fork & Hoe Co., 99 Vt. 301, 131 A. 844 (1926).

Cited. Falconer v. Cameron, 151 Vt. 530, 561 A.2d 1357 (1989).

§§ 626-628. Repealed. 1981, No. 165 (Adj. Sess.), § 7.

History

Former §§ 626-628. Former § 626, relating to State and municipal employees, was derived from 1955, No. 62 ; 1953, No. 125 , § 2; 1953, No. 63 ; V.S. 1947, § 8080; 1947, No. 156 , § 1; 1939, No. 182 , § 3; P.L. § 6505; 1927, No. 98 , § 2; G.L. § 5769; 1915, No. 164 , § 5; and amended by 1959, No. 29 , § 1; 1959, No. 328 (Adj. Sess.), § 34a(c); 1969, No. 261 (Adj. Sess.), § 4; 1973, No. 29 ; 1975, No. 93 , §§ 1, 2; 1979, No. 141 (Adj. Sess.), § 5.

Former § 627, defining employees of the State, was derived from V.S. 1947, § 8081; 1947, No. 156 , § 2; and amended by 1965, No. 194 , § 10; 1969, No. 261 (Adj. Sess.), § 3; No. 266 (Adj. Sess.), § 4; 1973, No. 37 , § 3; 1977, No. 182 , (Adj. Sess.) § 3; 1977, No. 182 (Adj. Sess.), § 3; 1979, No. 141 (Adj. Sess.), § 6.

Former § 628, relating to board to award compensation to State employees, was derived from V.S. 1947, § 8082; 1947, No. 156 , § 3.

§ 629. Repealed. 1989, No. 104, § 2, eff. Feb. 1, 1990.

History

Former § 629. Former § 629, relating to payment of awards to State employees, was derived from V.S. 1947, § 8083, 1947, No. 156 , § 4 and amended by 1981, No. 165 (Adj. Sess.), § 5 and 1983, No. 195 , (Adj. Sess.), § 5(b).

§§ 630, 631. Repealed. 1981, No. 165 (Adj. Sess.), § 7.

History

Former §§ 630, 631. Former § 630, relating to rules and reports, was derived from V.S. 1947, § 8084; 1947, No. 156 § 5.

Former § 631, relating to benefits awarded by the Board, was derived from V.S. 1947, § 8085; 1947, No. 156 , § 6.

§ 632. Compensation to dependents; burial and funeral expenses.

If death results from the injury, the employer shall pay to the persons entitled to compensation or, if there are none, then to the personal representative of the deceased employee, the actual burial and funeral expenses not to exceed $10,000.00 and the actual expenses for out-of-state transportation of the decedent to the place of burial not to exceed $5,000.00. Every two years, the Commissioner of Labor shall evaluate the average burial and funeral expenses in the State and make a recommendation to the House Committee on Commerce and Economic Development as to whether an adjustment in compensation is warranted. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this section. The employer shall also pay to or for the benefit of the following persons, for the periods prescribed in section 635 of this title, a weekly compensation equal to the following percentages of the deceased employee's average weekly wages. The weekly compensation payment herein allowed shall not exceed the maximum weekly compensation or be lower than the minimum weekly compensation:

  1. To the spouse, if there are no dependent children, 662/3 percent.
  2. To the spouse, if there is one dependent child, 712/3 percent; or if there are two or more dependent children, 762/3 percent.  The compensation to the spouse shall be for the use and benefit of the spouse and of the dependent children.
  3. If there is no spouse, but a dependent child or children, then to the child or children, the amount or amounts payable to a spouse with the same number of dependent children, to be divided equally among the children if more than one.
  4. If there is neither spouse, nor child, but there is a dependent father or mother, then to the parent, if wholly dependent, 30 percent, or if partially dependent, 20 percent or if both parents are dependent, then one-half of the foregoing compensation to each of them.  If there is no such parent, but a dependent grandparent, then to every such grandparent the same compensation as to a parent.
  5. If there is neither dependent spouse, child, parent, nor grandparent, but there is a dependent grandchild, brother, or sister, or two or more of them, to the dependents 15 percent for one dependent and five percent additional for each additional dependent, with a maximum of 25 percent to be divided equally between the dependents if more than one.

    Amended 1959, No. 191 , § 1; 1961, No. 22 ; 1963, No. 191 , § 1; 1965, No. 67 , § 1; 1965, No. 87 , § 1; 1967, No. 122 , § 2; 1975, No. 177 (Adj. Sess.), § 2; 1977, No. 182 (Adj. Sess.), § 4, eff. May 3, 1978; 1985, No. 194 (Adj. Sess.), § 3; 1995, No. 107 (Adj. Sess.), § 1; 2013, No. 199 (Adj. Sess.), § 50; 2017, No. 154 (Adj. Sess.), § 27, eff. May 21, 2018.

History

Source. 1957, No. 45 , § 2. 1955, No. 227 , § 1. 1949, No. 194 . V.S. 1947, § 8086. 1947, No. 157 , § 2. 1941, No. 159 , § 1. 1937, No. 172 , § 1. P.L. § 6513. G.L. § 5777. 1917, No. 173 , § 1. 1915, No. 164 , § 10.

Amendments--2017 (Adj. Sess.). Introductory language: Substituted "are" for "is" following "if there" in the first sentence, deleted "and the Senate Committee on Finance" following "and Economic Development" in the second sentence, and added the third sentence.

Amendments--2013 (Adj. Sess.). Substituted "burial and funeral expenses" for "death benefits" at the end of the section heading, inserted "the actual" twice, and substituted "not to exceed $10,000.00" for "in the amount of $5,500.00" following "burial and funeral expenses", "$5,000.00" for "$1,000.00" following "burial not to exceed", and added the second sentence.

Amendments--1995 (Adj. Sess.) Inserted "and funeral" following "burial" and substituted "$5,500.00 and expenses for out-of-state transportation of the decedent to the place of burial not to exceed $1,000.00" for "two thousand dollars" following "amount of" in the first sentence of the introductory paragraph.

Amendments--1985 (Adj. Sess.). Introductory paragraph: Substituted "two" for "one" preceding "thousand dollars" at the end of the first sentence.

Amendments--1977 (Adj. Sess.). Introductory paragraph: Amended generally.

Subdiv. (1): Substituted "spouse" for "dependent widow or widower" preceding "if there are".

Subdiv. (2): Substituted "spouse" for "dependent widow or widower" preceding "if there is one" in the first sentence and for "widow or widower" following "compensation to the" and following "benefit of the" in the second sentence.

Subdiv. (3): Substituted "spouse" for "dependent widow or widower" in two places and deleted the second sentence.

Subdiv. (4): Substituted "spouse" for "dependent widow, widower" following "neither" in the first sentence.

Subdiv. (5): Substituted "spouse" for "widow, widower" preceding "child".

Amendments--1975 (Adj. Sess.). Subdiv. (1): Substituted "sixty-six and two-thirds" for "fifty" preceding "per cent".

Subdiv. (2): Substituted "seventy-one and two-thirds" for "fifty-five" following "one dependent child" and "seventy-six and two-thirds" for "sixty" following "more dependent children".

Amendments--1967. Introductory paragraph: Amended generally.

Subdiv. (1): Substituted "fifty" for "forty" preceding "per cent".

Subdiv. (2): Substituted "fifty-five" for "forty-five" following "one dependent child" and "sixty" for "fifty" following "more dependent children" in the first sentence.

Amendments--1965. Introductory paragraph: Act No. 67 substituted "$13,530.00" for "$12,870.00" preceding "with the maximum and minimum weekly payments herein allowed limited to" and "$41.00 and $21.00" for "$39.00 and $20.00" thereafter.

Act No. 87 deleted "within four years" following "results from the injury".

Subdivs. (2)-(5): Act No. 67 made minor stylistic changes.

Amendments--1963. Introductory paragraph: Substituted "$500.00" for "$300.00" following "burial expenses not to exceed", "$12,870.00" for "$11,880.00" preceding "with the maximum and minimum weekly payments herein allowed limited to" and "$39.00 and $20.00" for "$36.00 and $18.00" thereafter.

Amendments--1961. Introductory paragraph: Substituted "four" for "two" preceding "years".

Amendments--1959. Introductory paragraph: Substituted "$300.00" for "$200.00" following "burial expenses not to exceed", "$11,880.00" for "$9,900.00" preceding "with the maximum and minimum weekly payments herein allowed limited to" and "$36.00" for "$30.00" thereafter.

Cross References

Cross references. Payment of benefits due in cases of death from other causes, see § 639 of this title.

Persons deemed dependents, see § 634 of this title.

Rival claimants for death benefits, see § 637 of this title.

ANNOTATIONS

1. Nature of rights.

The rights of dependents of deceased employees to compensation under this section are not derived from those of the deceased employee but are independent and separate rights coming to them by virtue of this section. Laird v. State of Vermont Highway Department, 112 Vt. 67, 20 A.2d 555 (1941).

Cited. Jewell v. Olson Construction Co., 122 Vt. 434, 175 A.2d 509 (1961).

§ 633. Apportionment of compensation.

The Commissioner shall, from time to time, apportion such compensation between any and all dependents named in section 632 of this title in such manner as he or she deems best and in making such apportionment he or she shall, insofar as it is possible, apportion such sum so that each dependent shall be self-supporting.

History

Source. V.S. 1947, § 8087. 1937, No. 172 , § 1. P.L. § 6513. G.L. § 5777. 1917, No. 173 , § 1. 1915, No. 164 , § 10.

Revision note. Substituted "section 632 of this title" for "the preceding section" to conform reference to V.S.A. style.

§ 634. Dependents; construction.

The following persons, and they only, shall be deemed dependents and entitled to compensation under the provisions of sections 632 and 633 of this title:

  1. A child, if under 18 years of age, or incapable of self-support and unmarried, whether or not ever actually dependent upon the deceased; or a child while regularly enrolled in an approved educational or vocational training institution, who was at the time of the employee's injury or death partially or wholly dependent on the employee, regardless of age; or a child of any age who was mentally or physically disabled at the time of the employee's death and partially or wholly dependent upon him or her.
  2. A spouse.
  3. A parent or grandparent only if dependent, wholly or partially, upon the deceased.
  4. A grandchild, brother, or sister under 18 years of age, or incapable of self-support, and wholly dependent upon the deceased employee, or who is regularly enrolled in an approved educational or vocational training institution, and was at the time of the employee's death, partially or wholly dependent upon the employee, regardless of age; or a grandchild, brother, or sister of any age who was mentally or physically disabled at the time of the employee's death and partially or wholly dependent upon him or her.  The relation of dependency must exist at the time of the injury.

    Amended 1967, No. 122 , § 3; 1977, No. 182 (Adj. Sess.), § 5, eff. May 3, 1978; 1981, No. 204 (Adj. Sess.), § 3.

History

Source. V.S. 1947, § 8088. 1947, No. 202 , § 8246. P.L. § 6514. G.L. § 5778. 1917, No. 173 , § 2. 1915, No. 164 , § 11.

Amendments--1981 (Adj. Sess.). Subdiv. (1): Added "or a child of any age who was mentally or physically disabled at the time of the employee's death and partially or wholly dependent upon him" following "regardless of age".

Amendments--1977 (Adj. Sess.). Section amended generally.

Amendments--1967. Subdiv. (1): Made minor stylistic change and added "or a child while regularly enrolled in an approved educational or vocational training institution, who was at the time of the employee's injury or death partially or wholly dependent on the employee, regardless of age" following "deceased".

Subdiv. (5): Added "employee, or who is regularly enrolled in an approved educational or vocational training institution, and was at the time of the employee's death, partially or wholly dependent upon the employee, regardless of age" following "deceased".

ANNOTATIONS

Analysis

1. Burden of proof.

It is the duty of a claimant under this section to produce evidence of dependency. Peabody v. Jones & Lamson Machine Co., 122 Vt. 431, 176 A.2d 759 (1961).

2. Evidence.

Exclusion of question whether claimant's unmarried daughter, over 18 years of age, was supported by workman at time of his decease, was proper, since such evidence, standing alone, had no tendency to show that she was incapable of self-support, which was test under subdivision (1) of this section. Morrill v. Charles Bianchi & Sons, Inc., 107 Vt. 80, 176 A. 416 (1935).

Cited. Gates v. A. G. Dewey Co., 94 Vt. 320, 111 A. 446 (1920).

§ 635. Periods of compensation.

The compensation provided for by the provisions of this chapter shall be payable during the following periods:

    1. Spouse.  To a spouse until: (1) (A) Spouse.  To a spouse until:
      1. sixty-two years of age if at that time the spouse is entitled to benefits under the Social Security Act as amended or thereafter at such time as the spouse is entitled to benefits under the Social Security Act as amended; or
      2. remarriage; or
      3. death, whichever occurs first.
    2. However, in no event shall the spouse receive less than a sum equal to 330 times the maximum weekly compensation except when the compensation terminates by reason of death.
  1. Child.  To or for a child, during dependency as defined in section 634 of this title.
  2. Parent or Grandparent.  To a parent or grandparent, during the continuation of a condition of actual dependency, but in no case to exceed 264 weeks.
  3. Grandchild or sibling.  To or for a grandchild, brother, or sister, during dependency as defined in section 634 of this title, but in no case to exceed 264 weeks.

    Amended 1967, No. 122 , § 4; 1969, No. 120 , eff. April 22, 1969; 1971, No. 158 (Adj. Sess.), § 1; 1977, No. 182 (Adj. Sess.), § 6, eff. May 3, 1978; 1985, No. 194 (Adj. Sess.), § 4; 2017, No. 74 , § 40.

History

Source. 1957, No. 150 , § 2. V.S. 1947, § 8089. P.L. § 6515. G.L. § 5779. 1915, No. 164 , § 12.

Reference in text. The Social Security Act, referred to in subdiv. (1)(A), is codified as 42 U.S.C. § 301 et seq.

Revision note. Deleted "until" at the beginning of subdivs. (1)(B) and (1)(C) to correct a grammatical error.

At the end of subdiv. (2), substituted "title" for "chapter" to conform reference to V.S.A. style.

Amendments--2017. Section amended generally.

Amendments--1985 (Adj. Sess.). Subdiv. (1): Substituted "a sum equal to 330 times the maximum weekly" for the "the limit of" following "less than".

Subdiv. (2): Substituted "in section 634 of this chapter" for "but in no case to exceed three hundred and thirty weeks" following "defined".

Amendments--1977 (Adj. Sess.). Subdiv. (1): Amended generally.

Subdivs. (2)-(5): Former subdivs. (3)-(5) redesignated as subdivs. (2)-(4).

Amendments--1971 (Adj. Sess.). Subdiv. (1): Deleted "remarriage" following "death" at the end of the second sentence.

Subdiv. (2): Deleted "or until remarriage" following "disability" and substituted "the limit of compensation" for "three hundred and thirty weeks" following "exceed".

Amendments--1969. Subdiv. (1): Added the second sentence.

Amendments--1967. Subdiv. (1): Amended generally.

ANNOTATIONS

Analysis

1. Construction.

Use of the word "actual" in subdivision (3) of this section points to a legislative intent that the dollars and cents position of the claimant be weighed without regard to the origins of whatever means he may possess. Peabody v. Jones & Lamson Machine Co., 122 Vt. 431, 176 A.2d 759 (1961).

2. Burden of proof.

It is the duty of a claimant under this section to produce evidence of dependency. Peabody v. Jones & Lamson Machine Co., 122 Vt. 431, 176 A.2d 759 (1961).

§ 636. Compensation for unexpired period; determined.

Upon the cessation of compensation under section 635 of this title to or on account of any person, the compensation of the remaining persons entitled to compensation for the unexpired part of the period during which their compensation is payable shall be that which such persons would have received if they had been the only persons entitled to compensation at the time of the decedent's death.

History

Source. V.S. 1947, § 8090. P.L. § 6515. G.L. § 5779. 1915, No. 164 , § 12.

§ 637. Death benefits; rival claimants.

Payment of death benefits by an employer in good faith to a dependent subsequent in right to another or other dependents shall protect and discharge the employer unless and until such dependent or dependents prior in right have given him notice of his, her, or their claim. In case the employer is in doubt as to the respective rights of rival claimants, he or she may apply to the Commissioner to decide between them.

History

Source. V.S. 1947, § 8091. P.L. § 6517. G.L. § 5781. 1917, No. 171 , § 3. 1915, No. 164 , § 13.

§ 638. Repealed. 1977, No. 182 (Adj. Sess.), § 22, eff. May 3, 1978.

History

Former § 638. Former § 638, relating to deduction of disability period from total periods of compensation, was derived from V.S. 1947, § 8092; P.L. § 6518; 1933, No. 157 , § 6192; G.L. § 5782; 1915, No. 164 , § 13.

§ 639. Death, payment to dependents.

In cases of the death of a person from any cause other than the accident during the period of payments for disability or for the permanent injury, the remaining payments for disability then due or for the permanent injury shall be made to the person's dependents according to the provisions of sections 635 and 636 of this title, or if there are none, the remaining amount due, but not more than the actual burial and funeral expenses not to exceed $10,000.00 and the actual expenses for out-of-state transportation of the decedent to the place of burial not to exceed $5,000.00, shall be paid in a lump sum to the proper person. Every two years, the Commissioner of Labor shall evaluate the average burial and funeral expenses in the State and make a recommendation to the House Committee on Commerce and Economic Development as to whether an adjustment in compensation is warranted. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this section.

Amended 1961, No. 66 ; 1963, No. 191 , § 2; 1977, No. 182 (Adj. Sess.), § 7, eff. May 3, 1978; 1985, No. 194 (Adj. Sess.), § 5; 1995, No. 107 (Adj. Sess.), § 2; 2013, No. 199 (Adj. Sess.), § 51; 2017, No. 154 (Adj. Sess.), § 28, eff. May 21, 2018.

History

Source. V.S. 1947, § 8093. 1947, No. 202 , § 8252. 1943, No. 126 , § 1. P.L. § 6519. 1923, No. 105 , § 3. G.L. § 5783. 1917, No. 173 , § 9.

Amendments--2017 (Adj. Sess.). Substituted "not more than" for "no more than" in the first sentence, deleted "and the Senate Committee on Finance" following "and Economic Development" in the second sentence, and added the third sentence.

Amendments--2013 (Adj. Sess.). Substituted "no more than the actual burial and funeral expenses not to exceed $10,000.00 and the actual expenses" for "not exceeding $5,500.00 for burial and funeral expenses" following "the remaining amount due, but", "$5,000.00" for "$1,000.00" following "place of burial not to exceed", and added the second sentence.

Amendments--1995 (Adj. Sess.) Substituted "$5,500.00 for burial and funeral expenses and expenses for out-of-state transportation of the decedent to the place of burial not to exceed $1,000.00" for "$2,000.00" following "exceeding" and deleted "for funeral expenses" following "proper person at the end of the section, and made a minor change in phraseology.

Amendments--1985 (Adj. Sess.). Inserted "or her" following "his" and substituted "$2,000.00" for "$1,000.00" following "exceeding".

Amendments--1977 (Adj. Sess.). Substituted "$1,000.00" for "$500.00" following "exceeding".

Amendments--1963. Substituted "$500.00" for "$300.00" following "exceeding".

Amendments--1961. Substituted "$300.00" for "$200.00" following "exceeding".

ANNOTATIONS

Analysis

1. Construction.

The phrase "the remaining amount due" in this section refers to the future payments that claimant would have received had he not died, and not to the payments that would have been made to him during his life had he been found eligible earlier; thus, the statutory payments to the administrators of a deceased claimant's under this section are for future compensation that would have gone to the claimant if he had been found eligible and not died, and not for the accrued compensation between the date of his eligibility and the date of payment. Dodge v. Precision Construction Products, Inc., 175 Vt. 101, 820 A.2d 207 (2003).

2. Burden of proof.

Where one receiving compensation, fixed by agreement, became insane and committed suicide, his widow seeking compensation under this section had burden of procuring finding that her husband, with knowledge of purpose and physical effect of his act, made a voluntary and willful choice to end his life, and such construction could not be given to finding of Commissioner that such man became insane from effects of his injury, and while in that condition committed suicide. McKane v. Capital Hill Quarry Co., 100 Vt. 45, 134 A. 640 (1926).

3. Survival of claims.

To the extent that administrators of the estate of a deceased claimant who had no dependents may have a claim to compensation under this section, such a claim survives the death of the claimant despite the fact that his claim for compensation had not been adjudicated by the Commissioner prior to his death. Dodge v. Precision Construction Products, Inc., 175 Vt. 101, 820 A.2d 207 (2003).

A claim for workers' compensation survived the death of a claimant who had no dependents because it was based on a contract right and was an asset of the estate, like any other debt. Dodge v. Precision Construction Products, Inc., 175 Vt. 101, 820 A.2d 207 (2003).

§ 640. Medical benefits; assistive devices; home and automobile modifications.

  1. An employer subject to the provisions of this chapter shall furnish to an injured employee reasonable surgical, medical, and nursing services and supplies, including prescription drugs and durable medical equipment. The employer shall provide assistive devices and modification to vehicles and residences reasonably necessary to permit an injured worker who is determined to have or expected to suffer a permanent disability, such as an ambulatory disability as defined in 20 V.S.A. § 2900 or blindness as defined in 20 V.S.A. § 2900 , that substantially and permanently prevents or limits the worker's ability to continue to live at home or perform basic life functions. In determining what devices and modifications are reasonably necessary, consideration shall be given to factors that include ownership of the residence to be modified, the length of time the worker is expected to utilize and benefit from the devices or modifications, and the extent to which the devices or modifications enhance or improve the worker's independent functioning. The employer shall also furnish reasonable hospital services and supplies, including surgical, medical, and nursing services while the injured employee is confined in a hospital for treatment and care.
  2. An employer may designate the treating health care provider to initially treat an injured employee immediately following a compensable injury. Thereafter, the employee may select another health care provider upon giving the employer written notice of the employee's reasons for dissatisfaction with the health care provider designated by the employer and the name and address of the health care provider selected by the employee. The Commissioner may permit an employer to refuse to reimburse a health care provider selected by the employee if notice required in this subsection is not provided to the employer unless the failure to provide notice is due to excusable neglect or inadvertence.
  3. An employer shall not withhold any wages from an employee for the employee's absence from work for treatment of a work injury or to attend a medical examination related to a work injury. If the employee selects a new health care provider in accordance with subsection (b) of this section, the employer shall have the right to require other medical examinations as provided in this chapter.
  4. The liability of the employer to pay for medical, surgical, hospital, and nursing services and supplies, prescription drugs, and durable medical equipment provided to the injured employee under this section shall not exceed the maximum fee for a particular service, prescription drug, or durable medical equipment as provided by a schedule of fees and rates prepared by the Commissioner. The reimbursement rate for services and supplies in the fee schedule shall include consideration of medical necessity, clinical efficacy, cost-effectiveness, and safety, and those services and supplies shall be provided on a nondiscriminatory basis consistent with workers' compensation and health care law. The Commissioner shall authorize reimbursement at a rate higher than the scheduled rate if the employee demonstrates to the Commissioner's satisfaction that reasonable and necessary treatment, prescription drugs, or durable medical equipment is not available at the scheduled rate. An employer shall establish direct billing and payment procedures and notification procedures as necessary for coverage of medically-necessary prescription medications for chronic conditions of injured employees, in accordance with rules adopted by the Commissioner.
  5. In the case of a work-related, first-aid-only injury, the employer shall file the first report of injury with the Department of Labor. The employer shall file the first report of injury with the workers' compensation insurance carrier or pay the medical bill within 30 days. If the employer contests a claim, a first report of injury shall be forwarded to the Department of Labor and the insurer within five days of notice. If additional treatment or medical visits are required or if the employee loses more than one day of work, the claim shall be promptly reported to the workers' compensation insurer, which shall adjust the claim. "Work-related, first-aid-only-treatment" means any one-time treatment that generates a bill for less than $750.00 and for which the employee loses no time from work except for the time for medical treatment and recovery not to exceed one day of absence from work.

    Amended 1959, No. 36 , eff. March 12, 1959; 1961, No. 148 , § 1; 1967, No. 122 , § 5; 1989, No. 165 (Adj. Sess.); 1993, No. 225 (Adj. Sess.), § 4; 1999, No. 41 , § 1; 2003, No. 132 (Adj. Sess.), § 11, eff. May 26, 2004; 2007, No. 208 (Adj. Sess.), § 8; 2017, No. 74 , § 41.

History

Source. 1955, No. 224 . 1953, No. 101 , § 1. 1951, No. 179 . 1949, No. 194 , § 2. V.S. 1947, § 8094. 1945, No. 145 , § 1. 1943, No. 127 , § 1.

Reference in text. Section 271 of this title, referred to in subsec. (a), was repealed by 2003, No. 141 (Adj. Sess.), § 12.

Revision note. The third sentence of subsec. (a), which was deleted by 1967, No. 122 , § 5, was derived from 1961, No. 148 , § 2.

Amendments--2017. Subsec. (a): In the second sentence, substituted "20 V.S.A. § 2900" for "section 271" twice; and deleted "of this title" preceding "or blindness".

Amendments--2007 (Adj. Sess.). Subsec. (e): Added.

Amendments--2003 (Adj. Sess.). Subsecs. (a), (d): Rewrote section catchline and amended subsecs. (a) and (d) generally.

Amendments--1999. Subsec. (d): Added the third sentence.

Amendments--1993 (Adj. Sess.). Subsec. (a): Substituted "the" for "such" preceding "employer shall" in the second sentence.

Subsec. (b): Amended generally.

Subsec. (c): Added the second sentence.

Subsec. (d): Added.

Amendments--1989 (Adj. Sess.). Subsec. (c): Added.

Amendments--1967. Subsec. (a): Deleted the third sentence and "provided, however, the amount expended for services and supplies under this section shall not exceed in the aggregate the sum of $5,000.00" following "care" at the end of the second sentence.

Amendments--1961. Made minor change in punctuation in the second sentence.

Amendments--1959. Subsec. (a): Substituted "$5,000.00" for "$2,500.00" following "sum of" at the end of the second sentence.

Modification benefits to disabled employees. 2003, No. 132 (Adj. Sess.), § 12, provides: "The purpose of the changes in 21 V.S.A. § 640(a) is to require employers to provide modification benefits to disabled employees who suffer a work injury on or after the effective date of this act [May 26, 2004] and is not to be construed to affect current law as it provides for modifications to vehicles and residences."

ANNOTATIONS

Analysis

1. Reasonable necessity.

Claimant had not shown that voice recognition software was a reasonably necessary medical benefit, as her physician's letter did not provide information about her daily computer use, its impact on her, whether she was at risk without the software, and how this technology would promote further healing, and did not support the inference that keyboarding was a basic life function in the claimant's circumstances. Morisseau v. Hannaford Brothers, 201 Vt. 313, 141 A.3d 745 (2016).

Cross References

Cross references. Medical examinations, see § 655 of this title.

Vocational rehabilitation, see § 641 of this title.

1. Services provided by spouse.

For purposes of workers' compensation benefits, claimant's spouse provided compensable "nursing services" which went beyond ordinary household duties. Claimant required supervision 24 hours a day and spouse was assigned a number of tasks by her husband's physicians, including administering, altering and monitoring his medications, keeping a log of his behavior, and monitoring his seizure activity and responding appropriately. Close v. Superior Excavating Co., 166 Vt. 318, 693 A.2d 729 (1997).

For purposes of workers' compensation benefits, the decision to compensate claimant's spouse for the entire time she was "on call" to provide nursing services to her injured husband was reasonable and well within the discretion of the commissioner. A caregiver is constantly "on call," even though part of the caregiver's time is spent performing other household chores. Close v. Superior Excavating Co., 166 Vt. 318, 693 A.2d 729 (1997).

In proceedings to secure the payment of workers' compensation benefits for nursing services provided by claimant's wife, as the employer had knowledge of the extent of the injury and the amount awarded was no more and probably somewhat less than the employer would have been required to pay if claimant had been placed in full-time care during this period, the decision to award benefits from the date of claimant's discharge, and not from the date when claimant's spouse decided to accept assistance in caring for her husband, was fair and reasonable. Close v. Superior Excavating Co., 166 Vt. 318, 693 A.2d 729 (1997).

In proceedings to secure the payment of workers' compensation benefits for nursing services provided by claimant's wife, the decision to order compensation at the rate of $4.10 per hour was not unreasonable, despite claimant's urging of the adoption of compensation at a rate of $18 per hour based on the testimony of claimant's physician that many of the services provided by claimant's spouse were consistent with work done by registered nurses or physician assistants. Although some of the work was of a skilled nature, for much of the time claimant's spouse provided "passive attendance." Using the prevailing minimum wage resulted in a total amount of compensation close to what the employer would have paid for 24-hour care at the residential facility where claimant later lived. Close v. Superior Excavating Co., 166 Vt. 318, 693 A.2d 729 (1997).

Cited. Orvis v. Hutchins, 123 Vt. 18, 179 A.2d 470 (1962); Marsigli's Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 197 A.2d 799 (1964); Valente v. Howe Richardson Scale Co., 127 Vt. 329, 248 A.2d 735 (1968); Angolano v. City of South Burlington, 142 Vt. 131, 453 A.2d 402 (1982).

§ 640a. Medical bills; payment; dispute.

  1. No later than 30 days following receipt of a bill from a health care provider for medical, surgical, hospital, nursing services, supplies, prescription drugs, or durable medical equipment provided to an injured employee, an employer or insurance carrier shall do one of the following:
    1. Pay or reimburse the bill.
    2. Provide written notification to the injured employee, the health care provider, and the Commissioner that the medical bill is contested or denied. The notice shall include specific reasons supporting the contest or denial, a description of any additional information needed by the employer or insurance carrier to determine liability for the medical bill, and a request that such information be submitted to the employer or insurance carrier within 30 days following receipt of the notice.
  2. Disputes regarding payment of a medical bill may be filed with the Commissioner by the injured employee or the health care provider. Disputes regarding payment of a medical bill or interest on that bill shall be determined by the Commissioner or, at the option of either party, be settled by arbitration in accordance with the Commercial Rules of the American Arbitration Association. The decision of an arbitrator shall be provided to the Commissioner, and the award may be entered as a judgment in a court of jurisdiction.
  3. If a medical bill was denied on the basis that the employer or insurance carrier was not provided with sufficient information to determine liability for payment pursuant to subdivision (a)(2) of this section, the employer or insurance carrier has 30 days following receipt of the additional information requested to pay or deny payment of the bill.
  4. Medical bills shall be paid within the time required in this section or according to the time requirements specified in a contract between the health care provider and the employer or insurance carrier.
  5. Interest shall accrue on an unpaid medical bill at the rate of 12 percent per annum calculated as follows:
    1. From the first calendar day following 30 days after the date the medical bill is received by the employer or insurance carrier for any of the following:
      1. A medical bill that was not denied.
      2. A medical bill that was denied and written notice was not provided or not provided within 30 days after receipt of the medical bill.
    2. For a medical bill that was denied based on insufficient information and notice was provided in compliance with subdivision (a)(2) of this section, from the first calendar day following 30 days after receipt of additional information sufficient to determine liability for payment.
    3. For a medical bill that was denied and notice was provided in compliance with subsection (a) of this section, from the first calendar day following 30 days after the date of a final arbitration award, judgment, or administrative order awarding payment of the disputed medical bill.
    4. For a medical bill that is paid in accordance with a contract between the health care provider and the employer or insurance carrier, from the day following the contract payment period or as otherwise specified in the contract.
  6. A health care provider shall submit a medical bill accompanied by medical documentation to the employer or insurance carrier within six months after the date the health care provider had actual knowledge that the services provided were related to a claim under this chapter. For the purposes of this section, "medical documentation" means documentation that describes an injury and the treatment provided and includes all relevant treatment notes, medical records, and diagnostic codes with sufficient detail to review the medical necessity of the service and the appropriateness of the fee charged. Failure to submit the bill within six months does not bar payment unless the employer or insurance carrier is prejudiced by the delay. The Commissioner may extend the six-month limit if the Commissioner determines that the delay resulted from circumstances outside the control of the health care provider.
  7. A medical bill shall be submitted in a legible form with every field or data element relevant to the treatment completed and treatment coding that conforms to the criteria of the National Correct Coding Initiative. The medical bill shall be submitted in any one of the following electronic or paper formats:
    1. CMS 1500 or its electronic equivalent for medical services.
    2. UB04 or its electronic equivalent for hospital inpatient and outpatient services.
    3. ADA J515 or its electronic equivalent for dental services.
  8. The Commissioner may assess penalties as provided in section 688 of this title against an employer or insurance carrier that fails to comply with the provisions of this section and may also refer to the Commissioner of Financial Regulation any employer or insurance carrier that neglects or refuses to pay medical bills as required by this section.
  9. Any interest or penalty paid by an employer or insurance carrier under this chapter shall be excluded from the claims data reported pursuant to 8 V.S.A. § 4687 .
  10. An employer or insurance carrier shall not impose on any health care provider any retrospective denial of a previously paid medical bill or any part of that previously paid medical bill, unless:
    1. The employer or insurance carrier has provided at least 30 days' notice of any retrospective denial or overpayment recovery or both in writing to the health care provider. The notice must include:
      1. the injured employee's name;
      2. the service date;
      3. the payment amount;
      4. the proposed adjustment; and
      5. a reasonably specific explanation of the proposed adjustment.
    2. The time that has elapsed does not exceed 12 months from the later of the date of payment of the previously paid medical bill or the date of a final determination of compensability.
  11. The retrospective denial of a previously paid medical bill shall be permitted beyond 12 months from the later of the date of payment or the date of a final determination of compensability for any of the following reasons:
    1. The employer or insurance carrier has a reasonable belief that fraud or other intentional misconduct has occurred.
    2. The medical bill payment was incorrect because the health care provider was already paid for the health services identified in the medical bill.
    3. The health care services identified in the medical bill were not delivered by the health care provider.
    4. The medical bill payment is the subject of adjustment with another workers' compensation or health insurer.
    5. The medical bill is the subject of legal action.
    1. For purposes of subsections (j) and (k) of this section, for routine recoveries as described in subdivisions (A) through (J) of this subdivision (1), retrospective denial or overpayment recovery of any or all of a previously paid medical bill shall not require 30 days' notice before recovery may be made. A recovery shall be considered routine only if one of the following situations applies: (l) (1)  For purposes of subsections (j) and (k) of this section, for routine recoveries as described in subdivisions (A) through (J) of this subdivision (1), retrospective denial or overpayment recovery of any or all of a previously paid medical bill shall not require 30 days' notice before recovery may be made. A recovery shall be considered routine only if one of the following situations applies:
      1. duplicate payment to a health care provider for the same professional service;
      2. payment with respect to an individual for whom the employer or insurance carrier is not liable as of the date the service was provided;
      3. payment for a noncovered service, not to include services denied as not medically necessary, experimental, or investigational in nature, or services denied through a utilization review mechanism;
      4. erroneous payment for services due to employer or insurance carrier administrative error;
      5. erroneous payment for services where the medical bill was processed in a manner inconsistent with the data submitted by the health care provider;
      6. payment where the health care provider provides the employer or insurance carrier with new or additional information demonstrating an overpayment;
      7. payment to a health care provider at an incorrect rate or using an incorrect fee schedule;
      8. payment of medical bills for the same injured employee that are received by the employer or insurance carrier out of the chronological order in which the services were performed;
      9. payment where the health care provider has received payment for the same services from another payer whose obligation is primary; or
      10. payments made in coordination with a payment by a government payer that require adjustment based on an adjustment in the government-paid portion of the medical bill.
    2. Notwithstanding the provisions of subdivision (1) of this subsection, recoveries which, in the reasonable business judgment of the employer or insurance carrier, would be likely to affect a significant volume of claims or accumulate to a significant dollar amount shall not be deemed routine, regardless of whether one or more of the situations in subdivisions (1)(A) through (J) of this subsection apply.
    3. Nothing in this subsection shall be construed to affect the time frames established in subdivision (j)(2) or subsection (k) of this section.

      Added 2009, No. 61 , § 27; amended 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012.

History

Reference in text. The Commercial Rules of the American Arbitration Association, referred to in subsec. (b), is codified as 9 U.S.C. § 1 et seq.

The National Correct Coding Initiative, referred to in subsec. (g), is codified as 42 U.S.C. § 1301 et seq.

Amendments--2011 (Adj. Sess.). Subsec. (h): Substituted "Commissioner of Financial Regulation" for "Commissioner of Banking, Insurance, Securities, and Health Care Administration".

2011 Statutory revision 2011, No. 78 (Adj. Sess.), § 2 provides: "The Legislative Council, in its statutory revision authority under 2 V.S.A. § 424, is directed to replace the term 'Commissioner of Banking, Insurance, Securities, and Health Care Administration' in the Vermont Statutes Annotated wherever it appears with the term 'Commissioner of Financial Regulation'; and to replace the term 'Department of Banking, Insurance, Securities, and Health Care Administration' wherever it appears with the term 'Department of Financial Regulation.'"

§ 640b. Request for preauthorization to determine if proposed treatment is necessary.

  1. Within 14 days of receiving a request for preauthorization for a proposed medical treatment and medical evidence supporting the requested treatment, a workers' compensation insurer shall:
    1. authorize the treatment and notify the health care provider, the injured worker, and the Department; or
      1. deny the treatment because the entire claim is disputed and the Commissioner has not issued an interim order to pay benefits; or (2) (A) deny the treatment because the entire claim is disputed and the Commissioner has not issued an interim order to pay benefits; or
      2. deny the treatment if, based on a preponderance of credible medical evidence specifically addressing the proposed treatment, it is unreasonable or unnecessary. The insurer shall notify the health care provider, the injured worker, and the Department of the decision to deny treatment; or
    2. notify the health care provider, the injured worker, and the Department that the insurer has scheduled an examination of the employee or ordered a medical record review pursuant to section 655 of this title. Based on the examination or review, the insurer shall authorize or deny the treatment and notify the Department and the injured worker of the decision within 45 days of a request for preauthorization. The Commissioner may in his or her sole discretion grant a 10-day extension to the insurer to authorize or deny treatment, and such an extension shall not be subject to appeal.
  2. If the insurer fails to authorize or deny the treatment pursuant to subsection (a) of this section within 14 days of receiving a request, the claimant or health care provider may request that the Department issue an order authorizing treatment. After receipt of the request, the Department shall issue an interim order within five days after notice to the insurer, and five days in which to respond, absent evidence that the entire claim is disputed. Upon request of a party, the Commissioner shall notify the parties that the treatment has been authorized by operation of law.
  3. If the insurer denies the preauthorization of the treatment pursuant to subdivision (a)(2) or (3) of this section, the Commissioner may on his or her own initiative or upon a request by the claimant issue an order authorizing the treatment if he or she finds that the evidence shows that the treatment is reasonable, necessary, and related to the work injury.

    Added 2011, No. 50 , § 3.

§ 640c. Opioid usage deterrence.

  1. In support of the State's fundamental interest in ensuring the well-being of employees and employers, it is the intent of the General Assembly to protect employees from the dangers of prescription drug abuse while maintaining a balance between the employee's health and the employee's expedient return to work.
  2. As it pertains to workers' compensation claims, the Commissioner of Labor, in consultation with the Department of Health, the State Pharmacologist, the Vermont Board of Medical Practice, and the Vermont Medical Society, shall adopt rules consistent with the best practices governing the prescription of opioids, including patient screening, drug screening, and claim adjudication for patients prescribed opioids for chronic pain. In adopting rules, the Commissioner shall consider guidelines and standards such as the Occupational Medicine Practice Guidelines published by the American College of Occupational and Environmental Medicine and other medical authorities with expertise in the treatment of chronic pain. The rules shall be consistent with the standards and guidelines under 18 V.S.A. § 4289 and any rules adopted by the Department of Health pursuant to 18 V.S.A. § 4289 .

    Added 2013, No. 199 (Adj. Sess.), § 52.

§ 641. Vocational rehabilitation.

  1. When as a result of an injury covered by this chapter, an employee is unable to perform work for which the employee has previous training or experience, the employee shall be entitled to vocational rehabilitation services, including retraining and job placement, as may be reasonably necessary to restore the employee to suitable employment. Vocational rehabilitation services shall be provided as follows:
    1. The employer shall designate a vocational rehabilitation provider from a list provided by the Commissioner to initially provide services. Thereafter, absent good cause, the employee may have only one opportunity to select another vocational rehabilitation provider from a list provided by the Commissioner upon giving the employer written notice of the employee's reasons for dissatisfaction with the designated provider and the name and address of the provider selected by the employee.
    2. The Department shall provide an injured worker with a form that includes information and employee rights. The form shall clearly and simply explain the worker's rights, including the choice of provider, the right to challenge a determination, and reimbursement for related expenses. The worker shall sign the form and return it to the Department.
    3. The Commissioner shall adopt rules to ensure that a worker who requests services or who has been out of work for more than 90 days is timely and cost-effectively screened for benefits under this section. The rules shall:
      1. Provide that all vocational rehabilitation work, except for initial screenings, be performed by a Vermont-certified vocational rehabilitation counselor, including counselors currently certified pursuant to the rules of the Department. Initial screenings shall be performed by an individual with sufficient knowledge or experience to perform adequately the vocational rehabilitation screening functions.
      2. Provide for an initial screening to determine whether a full assessment is appropriate. An injured worker who is determined to be eligible for a full assessment shall be timely assessed and offered appropriate vocational rehabilitation services.
      3. Provide a mechanism for a periodic and timely screening of injured workers who are initially found not to be ready or eligible for a full assessment to determine whether a full assessment has become appropriate.
      4. Protect against potential conflicts of interest in the assignment and performance of initial screenings.
      5. Ensure the injured worker has a choice of a vocational rehabilitation counselor.
    4. If services are not voluntarily offered and accepted by the employee, the Commissioner, if necessary through informal hearing, may refer the employee to a qualified physician or appropriate facility for evaluation of the practicability of, need for, and kind of service, treatment, or training necessary and appropriate to render the employee fit for a remunerative occupation. Upon receipt of findings and after affording the parties an opportunity to be heard, the Commissioner may order that the services and treatment recommended, or such other rehabilitation treatment or service the Commissioner may deem necessary be provided at the expense of the employer. When vocational rehabilitation requires residence at or near a facility or institution, away from the employee's customary residence, the reasonable cost of board, lodging, or travel, or both, shall be paid for by the employer. In addition, the employer shall pay reasonable costs of books, tools, or other basic materials required in such rehabilitation process. Refusal to accept vocational rehabilitation pursuant to an order of the Commissioner may result in loss of compensation for each week of the refusal, if the Commissioner so directs.
    5. The Commissioner may set by rule reasonable reimbursement rates for vocational rehabilitation benefits and services, provided access to vocational rehabilitation services is not diminished, and reasonable choices and access to benefits and services are maintained. The fee schedule shall require the individual vocational rehabilitation counselor who provides services to review, initial, and certify the accuracy of the billing.
    6. [Repealed.]
  2. Any person offering to provide vocational rehabilitation services to workers' compensation recipients shall register with the Department and shall possess appropriate qualification as established by the Department by rule. The Commissioner may determine that a vocational rehabilitation service provider lacks the appropriate qualifications if the provider fails to comply with the educational and training requirements established by the Commissioner and may revoke the provider's registration.
  3. Any vocational rehabilitation plan for a claimant presented to the employer shall be deemed valid if the employer was provided an opportunity to participate in the development of the plan and has made no objections or changes within 21 days after submission. A vocational rehabilitation counselor shall provide the employer with a written invitation to participate in plan development, including the date, time, and place to provide an opportunity to participate in the development of the plan, with a copy to the Department. The participation in the development of the plan may be conducted by telephone. The written notice shall be evidence of the opportunity to participate in plan development and shall be appended to the proposed plan.
  4. The Commissioner may adopt rules necessary to carry out the purpose of this section.
    1. In support of the State's fundamental interest in ensuring the well-being of employees and employers, it is the intent of the General Assembly that, following a workplace accident, an employee return to work as soon as possible but remain cognizant of the limitations imposed by his or her medical condition. (e) (1)  In support of the State's fundamental interest in ensuring the well-being of employees and employers, it is the intent of the General Assembly that, following a workplace accident, an employee return to work as soon as possible but remain cognizant of the limitations imposed by his or her medical condition.
    2. The Commissioner shall adopt rules promoting development and implementation of cost-effective, early return-to-work programs.

      Amended 1973, No. 64 , § 2; 1975, No. 177 (Adj. Sess.), § 3; 1981, No. 204 (Adj. Sess.), § 4; 1993, No. 225 (Adj. Sess.), § 5; 1997, No. 140 (Adj. Sess.), § 3; 1999, No. 97 (Adj. Sess.), § 1; 2003, No. 132 (Adj. Sess.), § 7, eff. May 26, 2004; 2005, No. 212 (Adj. Sess.), § 3, eff. May 29, 2006; 2007, No. 208 (Adj. Sess.), § 14; 2009, No. 33 , § 43; 2011, No. 50 , § 2; 2011, No. 133 (Adj. Sess.), § 1; 2013, No. 199 (Adj. Sess.), § 53, eff. June 24, 2014.

History

Source. V.S. 1947, § 8095. 1945, No. 145 , § 1. 1943, No. 127 , § 1.

Revision note. In subsec. (a), substituted "section 640 of this title" for "the preceding section" to conform reference to V.S.A. style.

Amendments--2013 (Adj. Sess.). Subdivs. (e)(1) and (e)(2): Added.

Amendments--2011 (Adj. Sess.). Subdiv. (a)(3): Substituted "who has been out of work for more than 90 days" for "who has received more than 90 days of continuous temporary total disability benefits".

Amendments--2011. Subsec. (c): Added the present second through fourth sentences.

Amendments--2009 Subdiv. (a)(6): Deleted.

Amendments--2007 (Adj. Sess.). In subdiv. (a)(1), inserted "absent good cause," preceding "the employee may" and inserted "have only one opportunity to" thereafter in the second sentence; added new subsec. (c) and redesignated former subsec. (c) as subsec. (d).

Amendments--2005 (Adj. Sess.). Subdiv. (a)(3): Amended generally.

Subdiv. (a)(5): Inserted "access to vocational rehabilitation services is not diminished, and" in the first sentence, and added the second sentence.

Subdiv. (a)(6): Added.

Amendments--2003 (Adj. Sess.). Subsec. (a): Added the last sentence to the introductory paragraph, redesignated existing provisions as subdivs. (1) and (4), and added subdivs. (2), (3), and (5).

Amendments--1999 (Adj. Sess.). Subsec. (a): Added the second sentence.

Subsec. (b): Added the second sentence.

Subsec. (c): Added.

Amendments--1997 (Adj. Sess.). Added the subsec. (a) designation to the beginning of the existing section text, and added subsec. (b).

Amendments--1993 (Adj. Sess.). Deleted "charges limited" preceding "vocational" in the section catchline, deleted "of Labor and Industry" following "Commissioner" and "affording all parties an opportunity to be heard thereon" following "hearing" in the second sentence, deleted "of labor and industry" preceding "may deem" in the third sentence and preceding "may result" in the sixth sentence and made other minor changes in phraseology throughout the section.

Amendments--1981 (Adj. Sess.). Catchline: Deleted " - " preceding "Charges" and added "; vocational rehabilitation".

Subsec. (a): Amended generally.

Subsec. (b): Inserted "an opportunity" following "parties" in the second sentence and deleted the former fourth sentence.

Amendments--1975 (Adj. Sess.). Subsec. (b): Added "except in unusual cases, when by special order of the Commissioner of Labor and Industry, after informal hearing, the period may be extended as is deemed to be reasonable and necessary to accomplish a successful result" following "one year" at the end of the fourth sentence.

Amendments--1973. Designated existing provisions of section as subsec. (a) and added subsec. (b).

ANNOTATIONS

Analysis

1. Vocational rehabilitation .

Subsection (b) of this section specifically ties vocational rehabilitation benefits to the restoration of earning skills. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

*2. Requirements.

The Legislature did not intend to provide benefits for lodging and board to those individuals who do not have to live away from their customary residence. Gintof v. Husky Injection Molding, 177 Vt. 638, 868 A.2d 713 (mem.) (January 19, 2005).

Subsection (b) of this section does not impose a duty on the employer or its insurer to develop a rehabilitation plan for a claimant; it only contemplates that the parties will cooperate in the development and implementation of a plan. Wroten v. Lamphere, 147 Vt. 606, 523 A.2d 1236 (1987).

*3. Suitable employment.

With regard to whether the claimant's employer was obligated to pay for voice recognition software as a vocational rehabilitation benefit, the Labor Commissioner properly held that a workers' compensation claimant had found suitable employment. Although the claimant's vocational rehabilitation counselor stated that her job security and suitability was not firmly established, he did not assert that her current employment was not expected to continue indefinitely, and neither the counselor nor the claimant identified any factors that posed a reasonably imminent threat to the continuity of her employment or showed that if the claimant's work for the child she was currently serving were to terminate, the claimant would be unlikely to find an alternative client relatively quickly. Morisseau v. Hannaford Brothers, 201 Vt. 313, 141 A.3d 745 (2016).

Commissioner erred in concluding that claimant was not entitled to rehabilitation services, where commissioner explicitly excluded consideration of claimant's preinjury wage and temperament, or personal choice, in determination of whether work she was able to do was "suitable." Peabody v. Home Insurance Co., 170 Vt. 635, 751 A.2d 783 (mem.) (2000).

Although injured workers are entitled under subsection (b) of this section to rehabilitation, they are only entitled if the proffered plan will result in suitable employment. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

Commissioner of labor and industry properly denied claimant's proposed rehabilitation plan where the undisputed testimony indicated that the plan, costing $2,695.00, would only result in $200.00 annual income, since such a return was insufficient to elevate the project to suitable employment as required in subsection (b) of this section. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

*4. Discretion of commissioner.

Commissioner of Labor and Industry did not abuse his discretion in failing to offer an alternative rehabilitation plan to claimant after rejecting claimant's proposed plan, since it is not incumbent on the Commissioner to establish a vocational rehabilitation plan, his obligation under subsection (b) of this section being, at most, to exercise discretion in referring claimants for vocational evaluation. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

5. Sex discrimination.

Employer's policy - under which workers with nonwork-related long-term disabilities that rendered them unable to substantially perform their responsibilities were placed on disability leave at fifty percent of salary, as opposed to workers with work-related disabilities, who were encouraged to accept accommodations, including alternative work, and who received full pay - did not specifically condition any employment or benefit rule on pregnancy and was facially neutral and affected pregnant women because their temporary disability, and those of others both male and female, was not work related. This policy distinction is fundamentally rooted in the workers' compensation laws. Lavalley v. E.B. & A.C. Whiting Co., 166 Vt. 205, 692 A.2d 367 (1997).

6. Administrative remedies.

Employee's claim that an employer acted in bad faith in denying a claim for vocational rehabilitation benefits under 21 V.S.A. § 641(a) was dismissed where the employee failed to seek a hearing or informal conference with the Vermont Department of Labor and Industry; thus, the employee failed to exhaust available administrative remedies to address the employer's delay in providing vocational rehabilitation. Buote v. Verizon New Eng., 249 F. Supp. 2d 422 (D. Vt. 2003).

Plaintiff's negligence complaint against defendant, a firm hired by her employer to provide her with vocational rehabilitation benefits after a workplace injury, was properly dismissed because she did not first pursue and exhaust the administrative remedies the Department of Labor and Industry designed to redress any problems associated with defendant's provision of the services. Wentworth v. Crawford & Co., 174 Vt. 118, 807 A.2d 351 (2002).

Because plaintiff's negligence complaint against defendant, a firm hired by her employer to provide her with vocational rehabilitation benefits after a workplace injury, set forth facts alleging that her economic injury occurred during her rehabilitation and resulted from defendant's failure to fulfill its obligation to provide her with training and job placement services, the exclusivity provision of the Workers' Compensation Act did not apply to her claim because her injury was not compensable. Wentworth v. Crawford & Co., 174 Vt. 118, 807 A.2d 351 (2002).

Plaintiff's negligence claim against defendant, a firm hired by her employer to provide her with vocational rehabilitation benefits after a workplace injury, was properly dismissed because her complaint did not allege facts sufficient to find that defendant owed her any actionable duty to prevent her economic losses. Wentworth v. Crawford & Co., 174 Vt. 118, 807 A.2d 351 (2002).

Plaintiff failed in her claim that defendant, a firm hired by her employer to provide her with vocational rehabilitation benefits after a workplace injury, owed her a duty arising from contract or an independent duty to protect her economic interests. Wentworth v. Crawford & Co., 174 Vt. 118, 807 A.2d 351 (2002).

Plaintiff failed in her argument that the trade of defendant, a firm hired by her employer to provide her with vocational rehabilitation benefits after a workplace injury, gave rise to a legal duty to protect her economic interests because neither her complaint nor her appellate brief alleged that defendant held itself out as a provider of a licensed professional service requiring a professional rather than ordinary standard of care. Wentworth v. Crawford & Co., 174 Vt. 118, 807 A.2d 351 (2002).

Vocational service provider hired by plaintiff's employer to provide her with vocational rehabilitation benefits after a workplace injury, did not owe her a duty under the rules of the Department of Labor and Industry to prepare, and have her sign an "Individual Written Rehabilitation Plan" (IWRP) to help her procure suitable employment because neither this section nor the Department's implementing regulations place sole responsibility for preparing an IWRP on the provider. Wentworth v. Crawford & Co., 174 Vt. 118, 807 A.2d 351 (2002).

Plaintiff's assertions that defendant, a vocational service provider hired by her employer, owed her a duty to pursue employment opportunities on her behalf, preserve her reinstatement rights, and provide her with training were insufficient as a matter of law. Wentworth v. Crawford & Co., 174 Vt. 118, 807 A.2d 351 (2002).

Statutes and regulations did not support plaintiff's contention that defendant, a vocational service provider hired by her employer, had a legal obligation to provide her with training. Wentworth v. Crawford & Co., 174 Vt. 118, 807 A.2d 351 (2002).

Cited. Orvis v. Hutchins, 123 Vt. 18, 179 A.2d 470 (1962); Norse v. Melsur Corp., 143 Vt. 241, 465 A.2d 275 (1983); King v. Snide, 144 Vt. 395, 479 A.2d 752 (1984); Stamper v. University Apartments, Inc., 147 Vt. 552, 522 A.2d 227 (1986).

§ 642. Temporary total disability benefits.

Where the injury causes total disability for work, during such disability, but not including the first three days, the day of the accident to be counted as the first day, unless the employee received full wages for that day, the employer shall pay the injured employee a weekly compensation equal to two-thirds of the employee's average weekly wages, but not more than the maximum nor less than the minimum weekly compensation. In addition, the injured employee, during the disability period shall receive $10.00 a week for each dependent child who is unmarried and under the age of 21 years, provided that no other injured worker is receiving the same benefits on behalf of the dependent child or children. However, in no event shall an employee's total weekly wage replacement benefits, including any payments for a dependent child, exceed 90 percent of the employee's average weekly wage prior to applying any applicable cost of living adjustment. The amount allowed for dependent children shall be increased or decreased weekly to reflect the number of dependent children extant during the week of payment. If the total disability continues after the third day for a period of seven consecutive calendar days or more, compensation shall be paid for the whole period of the total disability.

Amended 1959, No. 191 , § 2; 1963, No. 191 , § 3; 1965, No. 67 , § 2; 1965, No. 73 ; 1967, No. 122 , § 6; 1971, No. 158 (Adj. Sess.), § 2; 1973, No. 64 , § 3; 1977, No. 182 (Adj. Sess.), § 8, eff. May 3, 1978; 1981, No. 204 (Adj. Sess.), § 5; 1993, No. 225 (Adj. Sess.), § 6; 2003, No. 132 (Adj. Sess.), § 3, eff. May 26, 2004.

History

Source. 1957, No. 45 , § 1. 1955, No. 227 , § 2. 1953, No. 101 , § 2. 1949, No. 194 , § 3. V.S. 1947, § 8096. 1947, No. 158 , § 1. 1945, No. 146 , § 1. 1937, No. 173 , § 1. P.L. § 6521. 1933, No. 157 , § 6195. 1925, No. 100 . 1921, No. 167 . G.L. § 5785. 1917, No. 174 , § 2. 1917, No. 175 , § 2. 1915, No. 164 , § 15.

Amendments--2003 (Adj. Sess.). Deleted "provided that the weekly compensation shall not be greater that the injured employee's weekly net income" following "weekly compensation", in the first sentence deleted "provided that weekly benefits under this section shall not exceed the employee's income, and" following "21 years" in the second sentence, and inserted the third sentence.

Amendments--1993 (Adj. Sess.). Deleted "the employer" preceding "during such disability", inserted "the employer" preceding "shall pay", added "provided that the weekly compensation shall not be greater than the injured employee's weekly net income" following "minimum weekly compensation" and made other minor changes in phraseology in the first sentence, and substituted "weekly net income and provided that no other injured worker is receiving the same benefits on behalf of the dependent child or children" for "average weekly wage" following "exceed the employee's" in the second sentence.

Amendments--1981 (Adj. Sess.). Deleted subsec. (b) and designation "(a)" preceding remaining provisions of section, substituted "$10.00" for "$5.00" following "receive" in the second sentence and added "provided that weekly benefits under this section shall not exceed the employee's average weekly wage" at the end of that sentence.

Amendments--1977 (Adj. Sess.). Subsec. (a): Substituted "unless the employee received his full wages for" for "if the disability causes any lost time on the job" preceding "that day" in the first sentence, inserted the third sentence and "child who is unmarried and" following "dependent" in the second sentence and deleted the former last sentence and "and the limit of compensation shall not apply" following "disability" at the end of the fourth sentence.

Amendments--1973. Subsec. (a): Substituted "three" for "seven" following "not including the first" in the first sentence, "third" for "seventh" following "continues after the" in the third sentence and made other minor stylistic changes.

Amendments--1971 (Adj. Sess.). Subsec. (a): Substituted "five dollars a week for each dependent" for "the sum of three dollars and fifty cents per week per child for each dependent child" following "receive" in the second sentence, rewrote the third sentence and added the fourth sentence.

Amendments--1967. Subsec. (a): Amended generally.

Amendments--1965. Act No. 67 substituted "$41.00" for "$39.00" preceding "nor less than" and "$21.00" for "$20.00" thereafter in the first sentence and "$21.00" for "$20.00" preceding "a week" in the second sentence and made other minor stylistic changes.

Act No. 73 designated existing provisions of section as subsec. (a), made minor stylistic changes in that subsection and added subsec. (b).

Amendments--1963. In the first sentence, substituted "$39.00" for "$36.00" preceding "nor less than", "$20.00" for "$18.00" thereafter, "$2.50" for "$2.00" preceding "per week per child" and "fourteen" for "twenty-one" preceding "consecutive calendar days" and in the second sentence substituted "$20.00" for "$18.00" preceding "a week".

Amendments--1959. Substituted "$36.00" for "$30.00" preceding "nor less than" in the first sentence.

Temporary total disability duration. 2003, No. 132 (Adj. Sess.), § 10, provides: "Each workers' compensation insurer shall file a report or reports annually regarding current workers' compensation cases in which the temporary total disability compensation has been paid continuously for two or more years. The reports shall be in a form and include data as required by the commissioner."

Cross References

Cross references. Acceptance of disability retirement benefits as waiver of claim under this section, see 3 V.S.A. § 466.

Discontinuance of benefits, see § 643a of this title.

Extension of benefits after termination of temporary total disability, see § 1343 of this title.

Medical benefits, see § 640 of this title.

Permanent total disability benefits, see § 644 of this title.

Reinstatement following recovery, see § 643b of this title.

Temporary partial disability benefits, see § 646 of this title.

ANNOTATIONS

Analysis

1. Construction with other laws.

Where in 1972, the time an employee suffered a work-related injury which resulted in temporary total disability, subsection (a) of this section had been amended to provide that compensation would be allowed for the whole period of the disability, while section 643 of this title, governing the period of payments for such a disability, enacted in 1955, limited compensation to a period of 330 weeks, since the sections were in irreconcilable conflict, this one, being the more recent, would prevail. Montgomery v. Brinver Corp., 142 Vt. 461, 457 A.2d 644 (1983).

The words "disability for work" employed in this section and in section 646 of this title, relating to temporary partial disability benefits, refer to present earning capacity and convey a different legislative meaning and purpose than the permanent disability resulting from the scheduled injuries specified in section 648 of this title. Orvis v. Hutchins, 123 Vt. 18, 179 A.2d 470 (1962).

2. Incapacity for work.

Temporary disability benefits are awarded on the basis of the individual's incapacity for work, which involves consideration of not only the physical injury, but also of other factors restricting the claimant's capacity to obtain work. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

Total incapacity for work does not imply an absolute disability to perform any kind of labor; thus a person who is disqualified from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment is ordinarily regarded as totally incapacitated, but the test is not whether the injured employee is totally incapacitated from performing the same kind of labor as he was performing at the time of his injury, but whether he is capable of performing any kind of available work. Sivret v. Knight, 118 Vt. 343, 109 A.2d 495 (1954).

Incapacity for work means loss of earning power as a workman in consequence of injury, whether loss manifests itself in inability to perform such work as may be obtainable or inability to secure such work to do, providing lack of opportunity to work is not due to workman's fault or to general business depression. Roller v. Warren, 98 Vt. 514, 129 A. 168 (1925); Sivret v. Knight, 118 Vt. 343, 109 A.2d 495 (1954).

3. Period of disability.

Employee's pregnancy was not a superseding, intervening event that broke causal connection between her work-related accident and her disability; Commissioner of Labor and Industry's refusal to allow employer to discontinue employee's temporary total disability benefits during time of her pregnancy was therefore reasonable and consistent with statutory language. Wood v. Fletcher Allen Health Care, 169 Vt. 419, 739 A.2d 1201 (1999).

Under Vermont workers' compensation law, a claimant is entitled to temporary disability compensation until reaching a medical end result or successfully returning to work, and the determination of "medical end result" is a question of fact for the Commissioner; the proper test when determining the medical end result is whether the treatment contemplated at the time it was given was reasonably expected to bring about significant medical improvement, and the fact that some treatment, such as drug or physical therapy, continues to be necessary does not preclude a finding of medical end result if the underlying condition causing the disability has become stable and if further treatment will not improve that condition. Coburn v. Frank Dodge & Sons, 165 Vt. 529, 687 A.2d 465 (1996).

A claimant participating in a vocational rehabilitation program is not entitled to temporary total disability benefits if he has reached a medical end to treatment for his work-related injuries. Wroten v. Lamphere, 147 Vt. 606, 523 A.2d 1236 (1987).

Under this section temporary disability benefits are provided for workers who suffer a disability for work done during the period between their injury and final recovery, and once the recovery process has ended, or the worker has achieved the maximum possible restoration of his earning power, he is no longer entitled to temporary disability benefits. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

Temporary as distinguished from permanent disability is a condition of reduced earning power that exists until the injured workman is as far restored as the permanent character of his injuries will permit, and is measured by the duration of the healing period. Orvis v. Hutchins, 123 Vt. 18, 179 A.2d 470 (1962).

Period of temporary total disability need not be continuous and immediately following injury, but may be broken up in continuing intervals. Wilkins v. Blanchard-McDonald Lumber Co., 115 Vt. 89, 52 A.2d 781 (1947); Orvis v. Hutchins, 123 Vt. 18, 179 A.2d 470 (1962).

Man is physically able to work when he can do so without endangering his life or health and he is not required to continue to work if it will cause him to suffer serious discomfort and pain while so engaged. Sivret v. Knight, 118 Vt. 343, 109 A.2d 495 (1954).

Where employee was practically blind in his right eye and, while employed, suffered an accident through which he lost his left eye, he was entitled to compensation as for total and permanent disability, in spite of employer's claim that total disability ceased after wound caused by removal of left eye had healed. Notte v. Rutland Railroad, 112 Vt. 498, 28 A.2d 378 (1942).

A person's incapacity for work is total not only so long as he is unable to do any work of any character, but also while he remains unable as a result of his injury either to resume his former occupation or to procure remunerative employment at a different occupation suited to his impaired capacity. Roller v. Warren, 98 Vt. 514, 129 A. 168 (1925); Sivret v. Knight, 118 Vt. 343, 109 A.2d 495 (1954).

4. Dependents.

Since this section relates to compensation payable to the injured workman rather than to any dependent, it is apparent that the Legislative intent in authorizing additional compensation for dependents under this section was to help compensate an injured employee in relation to the number of dependents he had. 1954-56 Op. Atty. Gen. 199.

Proof of actual dependency as well as age should be required before granting additional compensation for dependents under this section. 1954-56 Op. Atty. Gen. 199.

Cited. Quinn v. Pate, 124 Vt. 121, 197 A.2d 795 (1964); Valente v. Howe Richardson Scale Co., 127 Vt. 329, 248 A.2d 735 (1968); Egbert v. Book Press, 144 Vt. 367, 477 A.2d 968 (1984); Merrill v. Town of Ludlow, 147 Vt. 186, 514 A.2d 1050 (1986); Fleury v. Kessel/Duff Construction Co., 148 Vt. 415, 533 A.2d 1197 (1987); Morin v. Essex Opticalhe Hartford, 178 Vt. 29, 868 A.2d 729 (January 28, 2005).

§ 642a. Temporary total; insurer review.

The employer shall review every claim for temporary total disability benefits that continues for more than 104 weeks. No later than 30 days after 104 weeks of continuous temporary total disability benefits have been paid, the employer shall file with the Department and the claimant a medical report from a physician that evaluates the medical status of the claimant, the expected duration of the disability, and when or if the claimant is expected to return to work. If the evaluating physician concludes that the claimant has reached a medical end result, the employer shall file a notice to discontinue.

Added 2007, No. 208 (Adj. Sess.), § 13.

§ 643. Period of payments.

Payments shall not continue after such disability ends.

Amended 1977, No. 182 (Adj. Sess.), § 9, eff. May 3, 1978.

History

Source. 1955, No. 227 , § 3. V.S. 1947, § 8097. P.L. § 6522. 1933, No. 157 , § 6196. 1925, No. 100 . 1921, No. 167 . G.L. § 5785. 1917, No. 174 , § 2. 1917, No. 175 , § 2. 1915, No. 164 , § 15.

Amendments--1977 (Adj. Sess.). Deleted "nor longer than three hundred and thirty weeks" following "disability ends" and deleted the second sentence.

ANNOTATIONS

1. Construction with other laws.

Where in 1972, the time an employee suffered a work-related injury which resulted in temporary total disability, section 642 of this title, governing temporary total disability benefits, had been amended to provide that compensation would be allowed for the whole period of the disability, while this section, enacted in 1955, limited compensation to a period of 330 weeks, since the sections were in irreconcilable conflict, section 642, being the more recent, would prevail. Montgomery v. Brinver Corp., 142 Vt. 461, 457 A.2d 644 (1983).

Cited. Orvis v. Hutchins, 123 Vt. 18, 179 A.2d 470 (1962); Valente v. Howe Richardson Scale Co., 127 Vt. 329, 248 A.2d 735 (1968); Fleury v. Kessel/Duff Construction Co., 148 Vt. 415, 533 A.2d 1197 (1987).

§ 643a. Discontinuance of benefits. Section 643a repealed effective July 1, 2023; see also section 643a effective July 1, 2023 below.

Unless an injured worker has successfully returned to work, an employer shall notify both the Commissioner and the employee prior to terminating benefits under either section 642 or 646 of this title. The notice of intention to discontinue payments shall be filed on forms prescribed by the Commissioner and shall include the date of the proposed discontinuance, the reasons for it, and, if the employee has been out of work for 90 days, a verification that the employer offered vocational rehabilitation screening and services as required under this chapter. All relevant evidence, including evidence that does not support discontinuance in the possession of the employer not already filed, shall be filed with the notice. The liability for the payments shall continue for seven days after the notice is received by the Commissioner and the employee. If the claimant disputes the discontinuance, the claimant may file with the Commissioner an objection to the discontinuance and seek an extension of 14 days. The objection to the discontinuance shall be specific as to the reasons and include supporting evidence. A copy of the objection shall be provided to the employer at the time the request is made to the Commissioner. Those payments shall be made without prejudice to the employer and may be deducted from any amounts due pursuant to section 648 of this title if the Commissioner determines that the discontinuance is warranted or if otherwise ordered by the Commissioner. Every notice shall be reviewed by the Commissioner to determine the sufficiency of the basis for the proposed discontinuance. If, after review of all the evidence in the file, the Commissioner finds that a preponderance of all the evidence in the file does not reasonably support the proposed discontinuance, the Commissioner shall order that payments continue until a hearing is held and a decision is rendered. Prior to a formal hearing, an injured worker may request reinstatement of benefits by providing additional new evidence to the Department that establishes that a preponderance of all evidence now supports the claim. If the Commissioner's decision, after a hearing, is that the employee was not entitled to any or all benefits paid between the discontinuance and the final decision, upon request of the employer, the Commissioner may order that the employee repay all benefits to which the employee was not entitled. The employer may enforce a repayment order in any court of law having jurisdiction.

Added 1981, No. 204 (Adj. Sess.), § 6; amended 1991, No. 264 (Adj. Sess.), § 1; 1997, No. 19 , § 3; 2005, No. 212 (Adj. Sess.), § 4, eff. May 29, 2006; 2009, No. 142 (Adj. Sess.), § 14, eff. June 1, 2010; 2013, No. 199 (Adj. Sess.), § 54; 2013, No. 199 (Adj. Sess.), § 54b, eff. July 1, 2018; repealed on July 1, 2023 by 2017, No. 148 (Adj. Sess.), § 4.

History

Revision note. In the first sentence, inserted "of this title" following "sections 642 or 646" to conform reference to V.S.A. style.

Amendments--2013 (Adj. Sess.). Added the fifth, sixth, and seventh sentences.

Amendments--2009 (Adj. Sess.) Amended section generally.

Amendments--2005 (Adj. Sess.). Deleted "section" preceding "646 of this title" in the first sentence; substituted "seven days" for "7 days" in the third sentence; substituted "shall order" for "may order" in the sixth sentence; and added the last two sentences.

Amendments--1997 Rewrote the third sentence and added the fourth sentence.

Amendments--1991 (Adj. Sess.). Rewrote the former first sentence as the first and second sentences, made minor changes in phraseology in the third sentence, made a minor change in punctuation in the fourth sentence, and deleted the last sentence.

Prospective repeal of § 643a. 2017, No. 148 (Adj. Sess.), § 4, provides that this section shall be repealed on July 1, 2023. Previously, 2013, No. 199 (Adj. Sess.), § 44a provided for the repeal of this section on July 1, 2018.

Cross References

Cross references. Proceedings for enforcement of order, see § 675 of this title.

ANNOTATIONS

1. Construction.

Employee's pregnancy was not a superseding, intervening event that broke causal connection between her work-related accident and her disability; Commissioner of Labor and Industry's refusal to allow employer to discontinue employee's temporary total disability benefits during time of her pregnancy was therefore reasonable and consistent with statutory language. Wood v. Fletcher Allen Health Care, 169 Vt. 419, 739 A.2d 1201 (1999).

§ 643a. Discontinuance of benefits. Section 643a effective July 1, 2023; see also section 643a effective until July 1, 2023 set out above.

Unless an injured worker has successfully returned to work, an employer shall notify both the Commissioner and the employee prior to terminating benefits under either section 642 or 646 of this title. The notice of intention to discontinue payments shall be filed on forms prescribed by the Commissioner and shall include the date of the proposed discontinuance, the reasons for it, and, if the employee has been out of work for 90 days, a verification that the employer offered vocational rehabilitation screening and services as required under this chapter. All relevant evidence, including evidence that does not support discontinuance in the possession of the employer not already filed, shall be filed with the notice. The liability for the payments shall continue for seven days after the notice is received by the Commissioner and the employee. Those payments shall be made without prejudice to the employer and may be deducted from any amounts due pursuant to section 648 of this title if the Commissioner determines that the discontinuance is warranted or if otherwise ordered by the Commissioner. Every notice shall be reviewed by the Commissioner to determine the sufficiency of the basis for the proposed discontinuance. If, after review of all the evidence in the file, the Commissioner finds that a preponderance of all the evidence in the file does not reasonably support the proposed discontinuance, the Commissioner shall order that payments continue until a hearing is held and a decision is rendered. Prior to a formal hearing, an injured worker may request reinstatement of benefits by providing additional new evidence to the Department that establishes that a preponderance of all evidence now supports the claim. If the Commissioner's decision, after a hearing, is that the employee was not entitled to any or all benefits paid between the discontinuance and the final decision, upon request of the employer, the Commissioner may order that the employee repay all benefits to which the employee was not entitled. The employer may enforce a repayment order in any court of law having jurisdiction.

Added 2013 No. 199 (Adj. Sess.), § 54b, eff. July 1, 2023 per 2017, No. 148 (Adj. Sess.), § 5.

History

Revision note. In the first sentence, inserted "of this title" following "sections 642 or 646" to conform reference to V.S.A. style.

Amendments--2009 (Adj. Sess.) Amended section generally.

Amendments--2005 (Adj. Sess.). Deleted "section" preceding "646 of this title" in the first sentence; substituted "seven days" for "7 days" in the third sentence; substituted "shall order" for "may order" in the sixth sentence; and added the last two sentences.

Amendments--1997 Rewrote the third sentence and added the fourth sentence.

Amendments--1991 (Adj. Sess.). Rewrote the former first sentence as the first and second sentences, made minor changes in phraseology in the third sentence, made a minor change in punctuation in the fourth sentence, and deleted the last sentence.

Prospective enactment of § 643a. 2017, No. 148 (Adj. Sess.), § 5 provides that the enactment of this section shall take effect on July 1, 2023. Previously, 2013, No. 199 (Adj. Sess.), § 69(b) provided for the enactment of this section on July 1, 2018.

Cross References

Cross references. Proceedings for enforcement of order, see § 675 of this title.

ANNOTATIONS

1. Construction.

Employee's pregnancy was not a superseding, intervening event that broke causal connection between her work-related accident and her disability; Commissioner of Labor and Industry's refusal to allow employer to discontinue employee's temporary total disability benefits during time of her pregnancy was therefore reasonable and consistent with statutory language. Wood v. Fletcher Allen Health Care, 169 Vt. 419, 739 A.2d 1201 (1999).

§ 643b. Reinstatement; seniority and benefits protected.

  1. For purposes of this section:
    1. "Employer" shall be defined as provided in section 601 of this title provided that this section shall only apply to employers who regularly employ at least 10 employees of whom at least 10 work more than 15 hours per week.
    2. "Recovery" means that the worker can reasonably be expected to perform safely the duties of his or her prior position or an alternative suitable position.
  2. The employer of a worker disabled by an injury compensable under this chapter shall reinstate the worker when his or her inability to work ceases provided recovery occurs within two years of the onset of the disability.  A worker who recovers within two years of the onset of the disability shall be reinstated in the first available position suitable for the worker given the position the worker held at the time of the injury.
  3. Upon reinstatement a worker shall regain seniority and any unused annual leave, personal leave, sick leave, and compensatory time he or she was entitled to prior to the interruption in employment, less any leave and compensatory time used during the period of interruption.
  4. The provisions of this section shall not apply if:
    1. the worker had been given notice, or had given notice, prior to sustaining the injury that employment would terminate;
    2. employment would have terminated of its own terms prior to any reinstatement the worker would otherwise be entitled to under this section;
    3. the worker fails to keep the employer informed of:
      1. his or her continuing interest in reinstatement;
      2. his or her recovery;
      3. any change of his or her mailing address.
  5. A worker aggrieved by an employer's failure to comply with the provisions of this section may bring an action in the Superior Court in the county in which the worker or the employer resides for damages, including punitive damages, for noncompliance and may apply for such equitable relief as may be just and proper under the circumstances.  A copy of the complaint shall be filed with the Commissioner.  The Court shall award reasonable attorney's fees to the plaintiff if he or she prevails.

    Added 1987, No. 105 , § 1.

ANNOTATIONS

Analysis

1. Construction with other laws.

In a former employee's suit asserting overtime compensation claims under the Fair Labor Standards Act (FLSA), 29 U.S.C.S. §§ 201-219, the court had supplemental jurisdiction pursuant to 28 U.S.C.S. § 1367(a) over the employee's claims under Vermont's Fair Employment Practices Act, 21 V.S.A. §§ 495-496, and Vermont's Workers' Compensation Law, 21 V.S.A. §§ 643b, 710 because those claims, though based on disability status and retaliation, were not totally unrelated to the FLSA claims, and adjudication of these state law claims was apt to require many of the same witnesses, much of the same evidence, and determination of many of the same facts. Connolly v. Smugglers' Notch Mgmt. Co., - F. Supp. 2d - (D. Vt. Nov. 5, 2009).

Section 643b(b) of Vermont's workers' compensation statute creates a narrow job protection that offsets any disadvantages experienced by the injured worker, while accommodating the employer's need to fill vacant positions when they arise, and section 643b(d)(2) provides a narrow exception to the reinstatement obligation, which applies if a term of employment limits the duration of that employment and that durational limit is reached before the injured worker is ready to return to work; where the supreme court concluded that the exception to the reinstatement right is more narrow than the trial court found, summary judgment was inappropriate. Payea v. Howard Bank, 164 Vt. 106, 663 A.2d 937 (1995).

2. Recovery .

Record supported trial court's conclusion that injured employee's disability had come to a final medical resolution, and that he could reasonably be expected to perform safely the duties of position which had become available at his former employer; employee was, accordingly, entitled to reinstatement. Schnabel v. Nordic Toyota, Inc., 168 Vt. 354, 721 A.2d 114 (1998).

3. Suitability of positions .

Claim that an employer failed to re-employ an employee in the first available position suitable as required under 21 V.S.A. § 643b(b) was not barred by the employee's failure to exhaust available administrative remedies for a vocational rehabilitation claim since claims under subsection 643b(b) that provision could be brought directly in Vermont Superior Court pursuant to 21 V.S.A. § 643b(e). Buote v. Verizon New Eng., 249 F. Supp. 2d 422 (D. Vt. 2003).

Employer was denied summary judgment on an employee's claim that it failed to re-employ as required under 21 V.S.A. § 643b(b) where the employer failed to show that a hiring freeze prevented it from reinstating the employee to positions for which the employee was qualified and able to perform without vocational rehabilitation. Buote v. Verizon New Eng., 249 F. Supp. 2d 422 (D. Vt. 2003).

This section does not place on the employer the responsibility to provide training to enable an applicant to meet a skill requirement; nor does it require that the employer wait until the applicant has on her own acquired the required skill. Wentworth v. Fletcher Allen Health Care, 171 Vt. 614, 765 A.2d 456 (mem.) (2000).

Employer was liable for failing to reinstate employee who had recovered from injury, where position employee sought was for all practical purposes the same as that which he had previously held, and position subsequently offered to employee was not an alternative suitable position. Schnabel v. Nordic Toyota, Inc., 168 Vt. 354, 721 A.2d 114 (1998).

§ 643c. Commissioner to provide notice; monitoring.

The Commissioner shall notify the employer and worker of the provisions of section 643b of this title as soon as a claim is filed if, in the Commissioner's opinion, it appears that they will be affected by the requirement for reinstatement. The Commissioner shall also request that such workers and employers supply, on a voluntary basis, information concerning requests for reinstatement, reinstatement of disabled workers, and the extent to which recourse is being sought under that section.

Added 1987, No. 105 , § 2.

§ 644. Permanent total disability.

  1. In case of the following injuries, the disability caused thereby shall be deemed total and permanent:
    1. the total and permanent loss of sight in both eyes;
    2. the loss of both feet at or above the ankle;
    3. the loss of both hands at or above the wrist;
    4. the loss of one hand and one foot;
    5. an injury to the spine resulting in permanent and complete paralysis of both legs or both arms or of one leg and of one arm; and
    6. an injury to the skull resulting in severe traumatic brain injury causing permanent and severe cognitive, physical, or psychiatric disabilities.
  2. The enumeration in subsection (a) of this section is not exclusive, and, in order to determine disability under this section, the Commissioner shall consider other specific characteristics of the claimant, including the claimant's age, experience, training, education, and mental capacity.

    Amended 1977, No. 182 (Adj. Sess.), § 10, eff. May 3, 1978; 1999, No. 97 (Adj. Sess.), § 3; 2013, No. 96 (Adj. Sess.), § 137.

History

Source. V.S. 1947, § 8098. P.L. § 6523. G.L. § 5768. 1915, No. 164 , § 15.

Amendments--2013 (Adj. Sess.). Subdiv. (a)(6): Substituted "severe traumatic brain injury causing permanent and severe cognitive, physical, or psychiatric disabilities" for "incurable imbecility or insanity" at the end.

Amendments--1999 (Adj. Sess.). Subsec. (b): Amended generally.

Amendments--1977 (Adj. Sess.). Designated existing provisions of section as subsec. (a) and added subsec. (b).

Cross References

Cross references. Amounts payable for permanent total disability, see § 645 of this title.

Limitation on claims under this section upon acceptance of disability retirement benefits, see § 466 of Title 3.

ANNOTATIONS

Analysis

1. Construction with other laws.

Where claimant was entitled by statute to permanent disability benefits according to the unchallenged finding of the Commissioner of Labor that his disability was permanent, the statute providing a penalty for false representation (21 V.S.A. § 708(a)) did not relieve his employer from its obligation to provide permanent disability benefits. Butler v. Huttig Bldg. Prods., 175 Vt. 323, 830 A.2d 44 (2003).

This section compensates for injuries which as a general rule tend to have the most severe impact on earning capacity while section 648 of this title, governing permanent partial disability benefits, compensates for injuries which generally have a less serious impact and rates the scheduled impairments accordingly. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

Subsection (b) of this section provides no criteria for unscheduled impairments; however, under section 648 of this title, governing partial disability, unscheduled injuries must be compensated proportionately to compensation awarded for scheduled impairments, and the same standard is required for evaluating total disability for unscheduled impairments. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

2. Purpose.

In order to further the purpose of this chapter of establishing an expedient, efficient remedy for injured workers, the legislature has chosen a scheduled benefits system, with a rate of compensation for listed injuries conclusively determined, so that resolution of these issues on a case by case basis is not required, thus avoiding impeding the process and delaying awards to needy beneficiaries, while still protecting against wage loss by awarding permanent disability benefits on the basis of physical impairment as a means to insure against wage loss. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

3. Loss of sight.

Where employee was practically blind in his right eye and, while employed, suffered an accident through which he lost his left eye, he was entitled to compensation as for total and permanent disability, in spite of employer's claim that total disability ceased after wound caused by removal of left eye had healed. Notte v. Rutland Railroad, 112 Vt. 498, 28 A.2d 378 (1942).

4. Unscheduled injuries.

In order for awards for unscheduled injuries under subsection (b) of this section and section 648 of this title to be proportionate to the compensation for scheduled impairments, as is required, they must be computed with reference to the criteria underlying the awards for scheduled impairments, and those criteria address impairment to wage loss on a general, not individual, basis. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

Where commissioner of labor and industry evaluated disability of claimant for permanent disability benefits based upon an unscheduled injury without reference to the claimant's ability to work, the commissioner's calculation of benefits was correct since individual economic capacity is rejected in this chapter and irrelevant to the evaluation of unscheduled injuries, the sole criterion of permanent disability being physical impairment. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

5. Authority of Commissioner.

Regulation of the Department of Labor and Industry governing the computation of benefits for unscheduled injuries was properly enacted as an authorized use of the implicit powers of the Commissioner of Labor and Industry under this chapter. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

6. Injury to skull.

Guided by the legislature's express statement of intent, the Vermont Supreme Court holds that the 2014 amendment defining "total and permanent disability" as an "injury to the skull resulting in severe traumatic brain injury causing permanent and severe cognitive, physical, or psychiatric disabilities" applies retroactively because it is a remedial change. West v. N. Branch Fire Dist. #1, - Vt. - , - A.3d - (June 18, 2021).

Guided by the legislature's statement of intent in Act 96 and based on how courts have interpreted the terms "imbecility" and "insanity" in the workers' compensation context, the Vermont Supreme Court concludes that the 2014 amendment defining "total and permanent disability" as an "injury to the skull resulting in severe traumatic brain injury causing permanent and severe cognitive, physical, or psychiatric disabilities" is a non-substantive, remedial change. The amendment is a modern, more respectful articulation of the "incurable imbecility or insanity" standard that is consistent with the functional definitions of "imbecility" and "insanity" that several courts have adopted, including the Michigan Supreme Court, the Virginia Court of Appeals, and the Texas Court of Appeals. West v. N. Branch Fire Dist. #1, - Vt. - , - A.3d - (June 18, 2021).

Workers' compensation claimant had not waived his right to seek permanent and total disability benefits for an "injury to the skull resulting in severe traumatic brain injury causing permanent and severe cognitive, physical, or psychiatric disabilities." The legislature expressly sought to cultivate a culture of respect towards persons with disabilities by amending the provision, which prior to the 2014 amendment referred to "an injury to the skull resulting in incurable imbecility or insanity," and the claimant had consistently expressed his desire to proceed under the more respectful 2014 standard. West v. N. Branch Fire Dist. #1, - Vt. - , - A.3d - (June 18, 2021).

Employer was not entitled to summary judgment on the question of whether the workers' compensation claimant was permanently and totally disabled by an "injury to the skull resulting in severe traumatic brain injury causing permanent and severe cognitive, physical, or psychiatric disabilities." The fact that the claimant was presently employed did not mean he could not be disabled, as total and permanent disability under the provision was not based on a claimant's ability to work, and disputed facts remained about the exact scope of his impairment. West v. N. Branch Fire Dist. #1, - Vt. - , - A.3d - (June 18, 2021).

Cited. Montgomery v. Brinver Corp., 142 Vt. 461, 457 A.2d 644 (1983); Wroten v. Lamphere, 147 Vt. 606, 523 A.2d 1236 (1987); Fleury v. Kessel/Duff Construction Co., 148 Vt. 415, 533 A.2d 1197 (1987).

§ 645. Amount payable.

  1. In case of an injury enumerated in section 644 of this title, the employer shall pay to the injured employee 662/3 percent of the employee's average weekly wages, computed as provided in section 650 of this title and subject to the maximum and minimum weekly compensation rates, for the duration of the employee's permanent total disability, but in no event shall the employee receive benefits for less than 330 weeks.  Benefits under this section shall continue beyond 330 weeks if the injury results in the loss of actual earnings or earning capacity after the injured employee is as far restored as the permanent character of the injuries will permit and results in the employee having no reasonable prospect of finding regular employment.
  2. The amount of compensation payable under this section shall not include the payment of compensation under sections 640, 642, and 646.  However, the payment of compensation under this section shall not occur until after the termination of compensation under sections 642 or 646 or both.

    Amended 1959, No. 191 , § 3; 1963, No. 191 , § 4; 1965, No. 67 , § 3; 1967, No. 122 , § 7; 1977, No. 182 (Adj. Sess.), § 11, eff. May 3, 1978; 1981, No. 204 (Adj. Sess.), § 7.

History

Source. 1957, No. 45 , § 3. 1955, No. 227 , § 4. 1949, No. 194 , § 4. V.S. 1947, § 8099. 1945, No. 146 , § 2. P.L. § 6524. G.L. § 5786. 1915, No. 164 , § 15.

Amendments--1981 (Adj. Sess.). Section amended generally.

Amendments--1977 (Adj. Sess.). Substituted "Amount payable" for "Maximum amount" as the catchline, deleted the former first sentence and added the last three sentences.

Amendments--1967. Substituted "section 644 of this title" for "the preceding section" following "enumerated in" in the first sentence and "limit of compensation" for "sum of $13,530.00" following "shall not exceed the" at the end of the second sentence.

Amendments--1965. Substituted "$13,530.00" for "$13,320.00" following "sum of" at the end of the second sentence.

Amendments--1963. Substituted "$13,320.00" for "$11,880.00" following "sum of" at the end of the second sentence.

Amendments--1959. Substituted "$11,880.00" for "$9,900.00" following "sum of" at the end of the second sentence.

Cross References

Cross references. Limitation on claims under this section upon acceptance of disability retirement benefits, see 3 V.S.A. § 466.

Payment of benefits due in cases of death from other causes, see § 639 of this title.

Permanent partial disability benefits, see § 648 of this title.

ANNOTATIONS

1. Construction.

Permanent disability benefits are calculated solely on the basis of physical impairment, and this section has arbitrarily fixed the amount of compensation to be paid for scheduled specific injuries regardless of loss of present earning power. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

The plain meaning, history and structure of this chapter preclude the consideration of individual wage loss in computing permanent benefits. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

Cited. Fleury v. Kessel/Duff Construction Co., 148 Vt. 415, 533 A.2d 1197 (1987); Wolfe v. Yudichak, 153 Vt. 235, 571 A.2d 592 (1989).

§ 646. Temporary partial disability benefits.

Where the disability for work resulting from an injury is partial, during the disability and beginning on the eighth day thereof, the employer shall pay the injured employee a weekly compensation equal to two-thirds of the difference between his or her average weekly wage before the injury and the average weekly wage which he or she is able to earn thereafter.

Amended 1963, No. 191 , § 5; 1965, No. 67 , § 4; 1967, No. 122 , § 8; 1981, No. 204 (Adj. Sess.), § 8; 1991, No. 264 (Adj. Sess.), § 2.

History

Source. 1957, No. 45 , § 4. 1955, No. 227 , § 5. 1949, No. 194 , § 5. V.S. 1947, § 8100. P.L. § 6525. 1933, No. 157 , § 6199. G.L. § 5787. 1917, No. 174 , § 3. 1917, No. 175 , § 3. 1915, No. 164 , § 16.

Amendments--1991 (Adj. Sess.). Inserted "or she" preceding "is able" and deleted "but not more than the minimum weekly compensation" following "thereafter".

Amendments--1981 (Adj. Sess.). Substituted "two-thirds" for "half" preceding "of the difference" and "is" for "will probably be" preceding "able to earn".

Amendments--1967. Substituted "the minimum weekly compensation" for "$21.00 a week" following "not more than".

Amendments--1965. Substituted "$21.00" for "$20.00" following "not more than".

Amendments--1963. Substituted "$20.00" for "$18.00" following "not more than".

Cross References

Cross references. Acceptance of disability retirement benefits as waiver of claim under this section, see 3 V.S.A. § 466.

Discontinuance of benefits, see § 643a of this title.

Medical benefits, see § 640 of this title.

Permanent partial disability benefits, see § 648 of this title.

Reinstatement following recovery, see § 643b of this title.

Temporary total disability benefits, see § 642 of this title.

ANNOTATIONS

Analysis

1. Construction with other laws.

The words "disability for work" employed in this section and in section 642 of this title, relating to temporary total disability benefits, refer to present earning capacity and convey a different legislative meaning and purpose than the permanent disability resulting from the scheduled injuries specified in section 648 of this title. Orvis v. Hutchins, 123 Vt. 18, 179 A.2d 470 (1962).

2. Criteria for award of benefits.

Temporary disability benefits are awarded on the basis of the individual's incapacity for work, which involves consideration of not only the physical injury, but also of other factors restricting the claimant's capacity to obtain work. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

In order to justify compensation for temporary partial disability, it must appear from the facts presented that the claimant, though able to earn some wages, has not regained full earning power and that he is still in the process of physical recovery. Orvis v. Hutchins, 123 Vt. 18, 179 A.2d 470 (1962).

3. Partial incapacity.

Partial incapacity for work is where injured workman is able both to procure and to perform work at some occupation suitable to his then existing capacity, but less remunerative than the work in which he was engaged when injured. Roller v. Warren, 98 Vt. 514, 129 A. 168 (1925).

4. Period of disability.

Under this section temporary disability benefits are provided for workers who suffer a disability for work done during the period between their injury and final recovery, and once the recovery process has ended, or the worker has achieved the maximum possible restoration of his earning power, he is no longer entitled to temporary disability benefits. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

Temporary as distinguished from permanent disability is a condition of reduced earning power that exists until the injured workman is as far restored as the permanent character of his injuries will permit, and is measured by the duration of the healing period. Orvis v. Hutchins, 123 Vt. 18, 179 A.2d 470 (1962).

Cited. Lavalley v. E.B. & A.C. Whiting Co., 166 Vt. 205, 692 A.2d 367 (1997).

§ 647. Period of payment.

Payments shall not continue after such temporary partial disability ends.

Amended 1977, No. 182 (Adj. Sess.), § 12, eff. May 3, 1978.

History

Source. 1955, No. 227 , § 6. V.S. 1947, § 8101. P.L. § 6526. G.L. § 5787. 1917, No. 174 , § 3. 1917, No. 175 , § 3. 1915, No. 164 , § 16.

Amendments--1977 (Adj. Sess.). Inserted "temporary partial" preceding "disability" and deleted "nor longer than three hundred and thirty weeks, and in case the partial disability begins after a period of total disability, the period of total disability shall be deducted from such total period of three hundred and thirty weeks" following "ends".

ANNOTATIONS

1. End of period.

When maximum earning power has been restored or the recovery process ended, the temporary aspects of the workman's disability are concluded. Moody v. Humphrey & Harding, Inc., 127 Vt. 52, 238 A.2d 646 (1968).

When maximum earning power has been restored or the recovery process ended, the temporary aspects of the workman's disability are concluded and the permanent residue of lost earning power and physical impairment attributable to the injury are compensable only under the scheduled benefits provided in section 648 of this title. Orvis v. Hutchins, 123 Vt. 18, 179 A.2d 470 (1962).

§ 648. Permanent partial disability benefits.

  1. Where the injury results in a partial impairment which is permanent and which does not result in permanent total disability, compensation shall be paid during the period of total disability, as provided in sections 642 and 643 of this title, and at the termination of total disability, the employer shall pay to the injured employee 662/3 percent of the average weekly wage, computed as provided in section 650 of this title, subject to the maximum and minimum weekly compensation rates, for a period determined by multiplying the employee's percentage of impairment of the whole person by 330 weeks. The percentage of impairment to the whole person is the percentage of impairment to the particular body part, system, or function converted to the percentage of impairment to the whole person as provided in subsection (b) of this section.
  2. Any determination of the existence and degree of permanent partial impairment shall be made only in accordance with the whole person determinations as set out in the Fifth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment. In order to utilize any subsequent edition of the American Medical Association Guides to the Evaluation of Permanent Impairment or any other appropriate guides to the evaluation of permanent impairment, the Commissioner, in consultation with the Department of Labor Advisory Council, shall adopt a rule. The Commissioner shall adopt a supplementary schedule for injuries that are not rated by the impairment guide authorized for use by the Department to determine permanent disability.
  3. Notwithstanding the provisions of subsections (a) and (b) of this section, for the purposes of determining the payment period for any permanent partial impairment to the spine, the percentage of impairment shall be determined in accordance with rules adopted by the Commissioner according to which an injury to the spine which is evaluated as a 60 percent impairment of the whole person shall provide 330 weeks of compensation.
  4. An impairment rating determined pursuant to this section shall be reduced by any previously determined permanent impairment for which compensation has been paid, but if the combination of the prior impairment rating and the rating determined pursuant to this section would result in the employee being considered permanently totally disabled, the prior rating shall not negate a finding of permanent total disability.

    Amended 1959, No. 34 , eff. March 12, 1959; 1963, No. 134 , § 2, eff. June 6, 1963; 1977, No. 182 (Adj. Sess.), § 13, eff. May 3, 1978; 1993, No. 225 (Adj. Sess.), § 7, eff. April 1, 1995; 2007, No. 208 (Adj. Sess.), § 6.

History

Source. 1955, No. 227 , § 7. V.S. 1947, § 8102. 1943, No. 128 , § 1. P.L. § 6527. 1929, No. 108 , § 2. 1921, No. 168 . 1919, No. 159 , §§ 1, 2. G.L. § 5788. 1917, No. 175 , § 3. 1915, No. 164 , § 16.

Amendments--2007 (Adj. Sess.). Subsec. (b): Substituted "fifth edition" for "most recent edition" in the first sentence, added the second sentence, and substituted "impairment guide authorized for use by the department to determine permanent disability" for "most recent edition of the American Medical Association Guides to the Evaluation of Permanent Impairment" in the third sentence.

Amendments--1993 (Adj. Sess.). Section amended generally.

Amendments--1977 (Adj. Sess.). Catchline: Substituted "Permanent partial disability" for " - Special" preceding "benefits".

Introductory paragraph: Substituted "weekly compensation" for "as provided in sections 642 and 643 of this title" following "minimum" and deleted "but in no case to exceed the period of three hundred and thirty weeks, which compensation shall be in lieu of all other benefits except those provided in sections 640 and 641 of this title" following "respectively".

Subdiv. (20): Deleted "of industrial relations" following "commissioner".

Subdiv. (21): Deleted "but in no case shall the total period for which compensation is paid exceed three hundred thirty weeks" following "above specified".

Amendments--1963. Subdiv. (21): Substituted "three hundred thirty" for "two hundred and sixty" preceding "weeks".

Amendments--1959. Subdivs. (1)-(3): Substituted "two hundred and fifteen" for "one hundred and seventy" preceding "weeks".

Subdiv. (4): Substituted "one hundred and seventy-five" for "one hundred and forty" preceding "weeks" in the first sentence.

Subdiv. (5): Substituted "one hundred and seventy-five" for "one hundred and twenty" preceding "weeks".

Subdiv. (6): Substituted "fifty" for "forty" preceding "weeks".

Subdiv. (7): Substituted "thirty-two" for "twenty-five" preceding "weeks".

Subdiv. (8): Substituted "twenty-five" for "twenty" preceding "weeks".

Subdiv. (9): Substituted "twenty" for "fifteen" preceding "weeks".

Subdiv. (10): Substituted "twelve" for "ten" preceding "weeks".

Subdiv. (13): Substituted "twenty-five" for "twenty" preceding "weeks".

Subdiv. (14): Substituted "ten" for "eight" preceding "weeks".

Subdiv. (17): Inserted "and twenty-five" preceding "weeks".

Subdiv. (19): Substituted "sixty-six and two-thirds" for "fifty" preceding "per cent".

Implementation of "whole person" rating method for determination of permanent partial disability compensation awards; study and report. 1993, No. 225 (Adj. Sess.), § 27, provided:

"(a) Beginning on April 1, 1995, under Sec. 7 of this act [which amended this section], awards for permanent partial disability compensation shall be made in accordance with the 'whole person' rating method pursuant to the AMA Guides to the Evaluation of Permanent Impairment in a manner that does not diminish the total amount of awards for permanent partial disability.

"(b) To ensure that awards under the 'whole person' rating do not result in a reduction from awards under the current permanent partial disability compensation system, the department of labor and industry shall study, in consultation with the governor's advisory council and with the assistance of independent experts, the impact of Sec. 7 on the total amount of permanent partial disability paid. As part of such study, the department shall compute each permanent partial disability award for the period July 1, 1992, through July 1, 1994, by two methods: (1) in accordance with 21 V.S.A. § 648; and (2) in accordance with the whole person rating pursuant to the AMA Guides to the Evaluation of Permanent Impairment. The department shall reports its findings to the legislature no later than January 1, 1995.

"(c) If the department finds that the use of the whole person rating method would result in greater than a two percent reduction in overall permanent partial disability compensation, the department shall by rule, effective April 1, 1995, adjust such method of awarding permanent partial disability compensation so as to offset any resulting reduction in awards under 21 V.S.A. § 648 as amended by Sec. 7 of this act".

Cross References

Cross references. Payment of benefits due in cases of death from other causes, see § 639 of this title.

Permanent total disability benefits, see § 645 of this title.

Temporary partial disability benefits, see § 646 of this title.

ANNOTATIONS

Analysis

1. Construction.

"Diagnosis" of a condition is not the same as "the existence of an impairment," and the reference in the permanent partial disability benefits statute to the "existence" of an impairment does not broaden that provision's focus on impairment to include diagnosis, injury, or any other concept; it just reflects an acknowledgment that in some cases an injury may not give rise to any associated permanent impairment. Brown v. W.T. Martin Plumbing & Heating, Inc., 194 Vt. 12, 72 A.3d 346 (2013).

2. Construction with other laws.

Where claimant was entitled by statute to permanent disability benefits according to the unchallenged finding of the Commissioner of Labor that his disability was permanent, the statute providing a penalty for false representation (21 V.S.A. § 708(a)) did not relieve his employer from its obligation to provide permanent disability benefits. Butler v. Huttig Bldg. Prods., 175 Vt. 323, 830 A.2d 44 (2003).

Employer was not required to pay permanent partial disability (PPD) benefits to injured employee, since employer was not barred from raising statute of limitations as a defense to payment of PPD benefits, as it had no duty to investigate employee's permanency status or inform him of his right to PPD benefits. Longe v. Boise Cascade Corp., 171 Vt. 214, 762 A.2d 1248 (2000).

Injuries which as a general rule tend to have the most severe impact on earning capacity are compensated for under section 644 of this title while this section compensates for injuries which generally have a less serious impact and rates the unscheduled impairments accordingly. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

The definition of partial disability contained in section 601 of this title, which states that partial disability may be held to include diminished ability to obtain employment owing to disfigurement resulting from an injury, does not apply to this section and only addresses the award of temporary benefits for temporary disability: The text of section 646 of this title contains the defined term, while the text of this section does not, and ability to work is a crucial factor in computing temporary disability benefits, but not in computing permanent partial benefits, which relies upon a scheduled benefits system. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

The words "disability for work" employed in sections 642 and 646 of this title, relating to temporary disability benefits, refer to present earning capacity and convey a different legislative meaning and purpose than the permanent disability resulting from the scheduled injuries specified in this section. Orvis v. Hutchins, 123 Vt. 18, 179 A.2d 470 (1962).

3. Purpose.

In order to further the purpose of this chapter of establishing an expedient, efficient remedy for injured workers, the legislature has chosen a scheduled benefits system, with a rate of compensation for listed injuries conclusively determined, so that resolution of these issues on a case by case basis is not required, thus avoiding impeding the process and delaying awards to needy beneficiaries, while still protecting against wage loss by awarding permanent disability benefits on the basis of physical impairment as a means to insure against wage loss. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

4. Loss of earning power.

Permanent disability benefits are calculated solely on the basis of physical impairment, and this section has arbitrarily fixed the amount of compensation to be paid for scheduled specific injuries regardless of loss of present earning power. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

The plain meaning, history and structure of this chapter preclude the consideration of individual wage loss in computing permanent benefits. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

Under this section, loss of present earning power is not for consideration. Beane v. Vermont Marble Co., 115 Vt. 142, 52 A.2d 784 (1947).

5. Degree of disability.

Under this section, the amount of compensation for back injuries must be assessed based on the percentage of loss of the back's function rather than on the degree of impairment of the whole person. Stamper v. University Apartments, Inc., 147 Vt. 552, 522 A.2d 227 (1986).

Commissioner of Labor and Industry properly rejected American Medical Association guidelines for computing the degree of claimant's disability where the guidelines were premised on a whole person standard. Stamper v. University Apartments, Inc., 147 Vt. 552, 522 A.2d 227 (1986).

Where claimant for permanent disability benefits based on an unscheduled injury suffered a 35 to 40 percent impairment of the spine, resulting in a 20 percent impairment of the whole man, and Commissioner of Labor and Industry awarded 66 weeks of permanent partial disability benefits on the basis of the twenty percent figure award would be reversed; benefits should have been awarded on the basis of the 35 to 40 percent back impairment, since subdivision (18) of this section, in providing compensation for unscheduled injuries, focuses solely upon the injuries themselves and the percentage of loss to the back was the appropriate standard. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

6. Proportionate awards.

Provision of subdivision (18) of this section that award shall be proportionate to amounts stated in schedule means proportionate to such amounts as have bearing on determination of question at issue. Jacobs v. Holden Leonard Co., 110 Vt. 245, 4 A.2d 343 (1939).

Claimant who suffered loss by amputation of two fingers and total loss of use of another was entitled to award of compensation under subdivision (18) of this section, providing that in other cases of class covered in the section, i.e., loss of specific members or functions, compensation should bear such relation to amounts stated for specific losses as disabilities bear to those produced by injuries named, and not to award computed by addition of separate awards given for thumb and fingers individually. Jacobs v. Holden Leonard Co., 110 Vt. 245, 4 A.2d 343 (1939).

7. Unscheduled injuries.

In order for awards for unscheduled injuries under section 644 of this title and this section to be proportionate to the compensation for scheduled impairments, as is required, they must be computed with reference to the criteria underlying the awards for scheduled impairments, and those criteria address impairment to wage loss on a general, not individual, basis. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

Where Commissioner of Labor and Industry evaluated disability of claimant for permanent disability benefits based upon an unscheduled injury without reference to the claimant's ability to work, the Commissioner's calculation of benefits was correct since individual economic capacity is rejected in this chapter and irrelevant to the evaluation of unscheduled injuries, the sole criterion of permanent disability being physical impairment. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

8. Limitations on awards.

The award specified for permanent disability under this section is not subject to any conditions or qualifications concerning temporary total loss of earning power, and should not be cut down by the period of temporary partial disability. Orvis v. Hutchins, 123 Vt. 18, 179 A.2d 470 (1962).

Under provision of subdivision (12) of this section that in no case shall amount received for loss of more than one finger exceed amount provided in schedule for loss of hand, it is intended that some portion of the thirty weeks by which compensation provided for loss of all fingers and thumb under subdivision (4) exceeds compensation provided in other subdivisions for loss of the several digits, shall be allocated to any loss of more than one finger, but within limitation that such extra compensation for loss of all five digits shall be 30 weeks. Jacobs v. Holden Leonard Co., 110 Vt. 245, 4 A.2d 343 (1939).

9. Authority of Commissioner.

Regulation of the Department of Labor and Industry governing the computation of benefits for unscheduled injuries was properly enacted as an authorized use of the implicit powers of the Commissioner of Labor and Industry under this chapter. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

10. Findings.

In making an award for permanent partial disability, after a period of temporary loss of wages, it is essential that a finding be made establishing the date when temporary partial disability ended. Orvis v. Hutchins, 123 Vt. 18, 179 A.2d 470 (1962).

11. Cost of living increases .

Decision of the Commissioner of the Department of Labor and Industry that the date workers' compensation claimants returned to work was the operative date from which to calculate cost of living increases for permanent partial disability benefits was consistent with the plain language of the relevant statutes and regulations. Laumann v. Department of Public Safety, 177 Vt. 52, 857 A.2d 309 (June 25, 2004).

12. Apportionment.

Both the permanent partial disability benefits statute and the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition expressly allow evaluators to rate an impairment using the rating method set forth in a specific section of the Guides even if an individual's condition (or diagnosis) is not the condition (or diagnosis) for which that section is specifically designed. Brown v. W.T. Martin Plumbing & Heating, Inc., 194 Vt. 12, 72 A.3d 346 (2013).

By deferring in the permanent partial disability benefits statute to the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition with respect to the methodology for rating an impairment, the Vermont Legislature has not purported to remove from the Commissioner of the Department of Labor the discretion to consider conflicting competent expert opinions concerning the presence of an impairment. Brown v. W.T. Martin Plumbing & Heating, Inc., 194 Vt. 12, 72 A.3d 346 (2013).

Section (b) of the statute pertaining to permanent partial disability benefits provides that the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) are to be used only to determine "the existence and degree of permanent partial impairment." The issue of apportionment, which is an issue of workers' compensation policy rather than medical judgment, does not fall within this statutory language; furthermore, the AMA Guides do not require apportionment, and the Legislature specifically addressed apportionment in section (d) of the statute. Kapusta v. Dep't of Health/Risk Mgmt., 186 Vt. 276, 980 A.2d 236 (2009).

Section (b) of the statute pertaining to permanent partial disability benefits does not require apportionment in any case. Kapusta v. Dep't of Health/Risk Mgmt., 186 Vt. 276, 980 A.2d 236 (2009).

Section (d) of the statute pertaining to permanent partial disability benefits merely identifies one situation in which apportionment is required and does not address apportionment in other circumstances. Kapusta v. Dep't of Health/Risk Mgmt., 186 Vt. 276, 980 A.2d 236 (2009).

Commissioner of the Department of Labor has the discretion not to apportion between preexisting uncompensated impairments and work-related injuries. Kapusta v. Dep't of Health/Risk Mgmt., 186 Vt. 276, 980 A.2d 236 (2009).

Commissioner of the Department of Labor had a sufficient evidentiary basis to find that the claimant, who had undergone a hip replacement before she slipped on ice at work but had returned to normal activities and was taking no medication, had no functional impairment at the time she slipped on the ice. Kapusta v. Dep't of Health/Risk Mgmt., 186 Vt. 276, 980 A.2d 236 (2009).

In deciding whether to apportion, the Commissioner of the Department of Labor could reach her own determination of the extent to which the claimant's hip replacement that she underwent before her work injury interfered with her ability to do her job and the extent of that ability after the work-related injury. The Commissioner's determination was supported by the evidence, and supported the conclusion that apportionment would be unjust because the claimant's hip replacement did not limit her work functionality. Kapusta v. Dep't of Health/Risk Mgmt., 186 Vt. 276, 980 A.2d 236 (2009).

13. American Medical Association Guides.

Trial court and the Labor Commissioner erred in concluding that the permanent partial disability benefits statute and the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition precluded them, as a matter of law, from considering any evidence of claimant's impairment associated with Complex Regional Pain Syndrome. Brown v. W.T. Martin Plumbing & Heating, Inc., 194 Vt. 12, 72 A.3d 346 (2013).

In the clear language of the permanent partial disability benefits statute, the Legislature has directed that the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition are determinative with respect to "any determination of the existence and degree of permanent partial impairment" associated with an injury; permanent partial disability benefits are available for permanent impairments associated with an injury. Nowhere does the statute state that the Guides provide the exclusive mechanism for determining the existence of, or diagnosis associated with, a compensable injury; rather, the statute declares that the rating of an impairment is to be conducted pursuant to the Guides. Brown v. W.T. Martin Plumbing & Heating, Inc., 194 Vt. 12, 72 A.3d 346 (2013).

To the extent that Chapter 16 of the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition purports to establish fixed criteria for diagnosing Complex Regional Pain Syndrome (CRPS), as opposed to a method for rating the impairment associated with that condition, the permanent partial disability benefits statute does not imbue those criteria with the force of law. The Guides may be used as evidence to support expert testimony concerning the presence of CRPS, and a factfinder may choose to rely upon the criteria listed in Chapter 16 of the Guides in determining if a claimant has an injury and whether that injury is appropriately labeled "CRPS," but the Guides do not necessarily contain the exclusive authoritative standard for diagnosing the condition; in the face of competing opinions regarding diagnosis, a factfinder must exercise reasoned judgment in weighing the competing expert opinions. Brown v. W.T. Martin Plumbing & Heating, Inc., 194 Vt. 12, 72 A.3d 346 (2013).

Legislature in the permanent partial disability benefits statute has made it clear that its goal is not to ensure compliance with the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition as an end in itself; rather, the Guides are a tool to promote the legislature's goal of ensuring that individuals who suffer permanent impairment as a result of work-related injuries receive appropriate permanent partial disability benefits. Brown v. W.T. Martin Plumbing & Heating, Inc., 194 Vt. 12, 72 A.3d 346 (2013).

Permanent partial disability benefits statute in its entirety reflects a clear statutory intent that no bona fide impairment should go uncompensated simply because the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition fail to provide a method for assigning a rating to a particular condition. Instead, the statute specifically authorizes the Commissioner of the Department of Labor to develop methods for rating impairments not covered by the Guides, and the Commissioner has adopted a rule to ensure that impairments not expressly included in the Guides are rated and lead to compensation; accordingly, pursuant to the statutory scheme, individuals suffering from impairments not specifically described or listed in the Guides nonetheless may be entitled to an impairment rating and associated permanent partial disability benefits if supported by sufficient expert testimony. Brown v. W.T. Martin Plumbing & Heating, Inc., 194 Vt. 12, 72 A.3d 346 (2013).

Cited. Valente v. Howe Richardson Scale Co., 127 Vt. 329, 248 A.2d 735 (1968); Angolano v. City of South Burlington, 142 Vt. 131, 453 A.2d 402 (1982); Montgomery v. Brinver Corp., 142 Vt. 461, 457 A.2d 644 (1983); Wroten v. Lamphere, 147 Vt. 606, 523 A.2d 1236 (1987); Fleury v. Kessel/Duff Construction Co., 148 Vt. 415, 533 A.2d 1197 (1987).

§ 649. Injuries not covered; burden of proof.

Compensation shall not be allowed for an injury caused by an employee's willful intention to injure himself, herself, or another or by or during his or her intoxication or by an employee's failure to use a safety appliance provided for his or her use. The burden of proof shall be upon the employer if he or she claims the benefit of the provisions of this section.

History

Source. V.S. 1947, § 8103. P.L. § 6528. G.L. § 5789. 1915, No. 164 , § 6.

ANNOTATIONS

Analysis

1. Causation.

When used in a statute, "cause" is generally understood to mean proximate cause. This general rule holds true when "cause" appears in the intoxication defenses that are often part of workers' compensation statutes; in fact, the major disagreement in decisions addressing this exemption has been whether the intoxication must be the sole proximate cause or merely a major or primary cause. Cyr v. McDermott's, Inc., 187 Vt. 392, 996 A.2d 709 (2010).

Proximate cause analysis is not necessary in determining whether a worker is eligible for coverage; however, to be precluded, an employer must affirmatively show that intoxication played a role in causing the injury, either actively - "caused by" - or passively - "caused during." This interpretation of the statute listing injuries not covered by workers' compensation carries out the Legislature's intent to void compensation resulting from certain types of malfeasance; moreover, to understand "cause" in the statute to mean nothing more than "occur" creates a distinctly unjust and absurd outcome by barring lawful recovery for those workers whose injuries manifest outside the job. Cyr v. McDermott's, Inc., 187 Vt. 392, 996 A.2d 709 (2010).

To uphold the legislative intent of barring recovery in cases of worker malfeasance without precluding other worthy claimants, determining the causal relationship between any malfeasance and the claimed injury is vital. Cyr v. McDermott's, Inc., 187 Vt. 392, 996 A.2d 709 (2010).

2. Particular cases.

In a case where a workers' compensation claimant accidentally drank a caustic agent that was in a soda bottle he had taken home from work, his injury arose out of his employment when he accepted the bottle containing the caustic chemicals, and his alleged intoxication at the time he drank from the bottle did not bar his claim. His act of accepting the bottle at work put the mechanism of injury in motion, and no one suggested he was intoxicated at that time. Cyr v. McDermott's, Inc., 187 Vt. 392, 996 A.2d 709 (2010).

§ 650. Payment; average wage; computation.

  1. Average weekly wages shall be computed in such manner as is best calculated to give the average weekly earnings of the worker during the 26 weeks preceding an injury; but where, by reason of the shortness of the time during which the worker has been in the employment, or the casual nature of the employment, or the terms of the employment, it is impracticable to compute the rate of remuneration, average weekly wages of the injured worker may be based on the average weekly earnings during the 26 weeks previous to the injury earned by a person in the same grade employed at the same or similar work by the employer of the injured worker, or if there is no comparable employee, by a person in the same grade employed in the same class of employment and in the same district. If during the period of 26 weeks an injured employee has been absent from employment on account of sickness or suspension of work by the employer, then only the time during which the employee was able to work shall be used to determine the employee's average weekly wage. If the injured employee is employed in the concurrent service of more than one insured employer or self-insurer the total earnings from the several insured employers and self-insurers shall be combined in determining the employee's average weekly wages, but insurance liability shall be exclusively upon the employer in whose employ the injury occurred. The average weekly wage of a volunteer firefighter, volunteer rescue or ambulance worker, volunteer reserve police officer, or volunteer as set forth in 3 V.S.A. §  1101(b)(4), who is injured in the discharge of duties as a firefighter, rescue or ambulance worker, police officer, or State agency volunteer, shall be the employee's average weekly wage in the employee's regular employment or vocation but the provisions of section 642 of this title relative to maximum weekly compensation and weekly net income rates, shall apply. For the purpose of calculating permanent total or permanent partial disability compensation, the provisions relating to the maximum and minimum weekly compensation rate shall apply. In any event, if a worker at the time of the injury is regularly employed at a higher wage rate or in a higher grade of work than formerly during the 26 weeks preceding the injury and with larger regular wages, only the larger wages shall be taken into consideration in computing the worker's average weekly wages.
  2. In determining the compensation to be paid to any member of the National Guard or the Vermont State Guard, if that member is not regularly employed by some other person, it shall be assumed that the member is receiving income from a business or from other employment equivalent to wages in an amount one and one-half times the maximum compensation rate for total disability. If the wages received for the performance of duties as a member of the National Guard or Vermont State Guard exceed the wages received from a regular employer, that member shall be entitled to a rate of compensation based on wages received as a member of the National Guard or Vermont State Guard.
  3. When temporary disability, either total or partial, does not occur in a continuous period but occurs in separate intervals each resulting from the original injury, compensation shall be adjusted for each recurrence of disability to reflect any increases in wages or benefits prevailing at that time. For the purpose of computation, the adjustments shall be based upon the compensation received by a person in the same grade employed in the same class of employment and in the same district. The provisions of this section shall apply to compensable accidents occurring on and after July 1, 1973.
  4. Compensation computed pursuant to this section shall be adjusted annually on July 1, so that such compensation continues to bear the same percentage relationship to the average weekly wage in the State as computed under this chapter as it did at the time of injury. Temporary total or temporary partial compensation shall first be adjusted on the first July 1 following the receipt of 26 weeks of benefits.
  5. If weekly compensation benefits or weekly accrued benefits are not paid within 21 days after becoming due and payable pursuant to an order of the Commissioner, or in cases in which the overdue benefit is not in dispute, 10 percent of the overdue amount shall be added and paid to the employee, in addition to interest and any other penalties. In the case of an initial claim, benefits are due and payable upon entering into an agreement pursuant to subsection 662(a) of this title, upon issuance of an order of the Commissioner pursuant to subsection 662(b) of this title, or if the employer has not denied the claim within 21 days after the claim is filed. Benefits are in dispute if the claimant has been provided actual written notice of the dispute within 21 days of the benefit being due and payable and the evidence reasonably supports the denial. Interest shall accrue and be paid on benefits that are found to be compensable during the period of nonpayment. The Commissioner shall promptly review requests for payment under this section and, consistent with subsection 678(d) of this title, shall allow for the recovery of reasonable attorney's fees associated with an employee's successful request for payment under this subsection.
  6. When benefits have been awarded or are not in dispute as provided in subsection (e) of this section, the employer shall establish a weekday on which payment shall be mailed or deposited and notify the claimant and the Department of that day. The employer shall ensure that each weekly payment is mailed or deposited on or before the day established. Payment shall be made by direct deposit to a claimant who elects that payment method. The employer shall notify the claimant of his or her right to payment by direct deposit. If the benefit payment is not mailed or deposited on the day established, the employer shall pay to the claimant a late fee of $10.00 or five percent of the benefit amount, whichever is greater, for each weekly payment that is made after the established day. As used in this subsection, "paid" means the payment is mailed to the claimant's mailing address or, in the case of direct deposit, transferred into the designated account. In the event of a dispute, proof of payment shall be established by affidavit.

    Amended 1959, No. 29 , § 2, eff. March 11, 1959; 1965, No. 173 ; 1969, No. 261 (Adj. Sess.), § 4, eff. April 7, 1970; 1973, No. 30 , §§ 1, 2; 1981, No. 165 (Adj. Sess.), § 1; 1983, No. 121 (Adj. Sess.), § 2, eff. March 28, 1984; 1993, No. 225 (Adj. Sess.), § 8; 2003, No. 132 (Adj. Sess.), § 5, eff. May 26, 2004; 2005, No. 209 (Adj. Sess.), § 33; 2005, No. 212 (Adj. Sess.), § 5, eff. May 29, 2006; 2007, No. 208 (Adj. Sess.), § 12; 2009, No. 142 (Adj. Sess.), § 15; 2019, No. 85 (Adj. Sess.), § 18, eff. Jan. 1, 2021.

History

Source. 1957, No. 45 , § 6. 1955, No. 227 , § 9. V.S. 1947, § 8104. 1947, No. 157 , § 4. 1937, No. 174 , § 1. P.L. § 6529. 1919, No. 159 , § 3. G.L. § 5790. 1915, No. 164 , § 17.

Revision note. In subsec. (c), substituted "July 1, 1973" for "the effective date of this act" for purposes of clarity.

Amendments--2019 (Adj. Sess.) Subsec. (f): Added the third and fourth sentences; and substituted "As used in" for "For the purposes of" at the beginning of the sixth sentence.

Amendments--2009 (Adj. Sess.) Subsec. (e): Substituted "subsection 678(d) of this title" for "the criteria in department rule 10.13" in the last sentence.

Subsec. (f): Added.

Amendments--2007 (Adj. Sess.). Subsec. (a): Substituted "26 weeks" for "12 weeks" throughout the subsection, and inserted "at a higher wage rate or" following "employed" in the last sentence.

Subsec. (d): Added the second sentence.

Amendments--2005 (Adj. Sess.). Subsec. (a): Act No. 209 added "or volunteer as set forth in subdivision 1101(b)(4) of Title 3" following "volunteer reserve police officer" and "or state agency volunteer" following "police officer" in the fourth sentence.

Subsec. (e): Act No. 212 added the last sentence.

Amendments--2003 (Adj. Sess.) Subsec. (e): Added.

Amendments--1993 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Substituted "the member" for "he" following "assumed that" and "a" for "his" preceding "business" in the first sentence.

Amendments--1983 (Adj. Sess.). Subsec. (a): Inserted "volunteer rescue or ambulance worker" following "volunteer fireman" and "rescue or ambulance worker" following "fireman" in the fourth sentence.

Amendments--1981 (Adj. Sess.). Subsec. (a): Substituted "worker" for "workman" wherever it appeared.

Amendments--1973. Subsecs. (c), (d): Added.

Amendments--1969 (Adj. Sess.). Designated existing provisions of section as subsec. (a) and added subsec. (b).

Amendments--1965. Inserted the third sentence.

Amendments--1959. Inserted "or volunteer reserve police officer" following "volunteer fireman" and "or police officer" following "such fireman" in the third sentence.

Expiration of 1965 amendment. 1965, No. 173 , § 2, which provided that the 1965 amendment of this section would expire on June 30, 1967, was repealed by 1967, No. 14 , § 1, eff. March 1, 1967.

Calculation of workers' compensation for auxiliary troopers. 1997, No. 28 , § 14a, eff. May 15, 1997, provided: "Notwithstanding any other provision of the law to the contrary, wages received from an auxiliary trooper's regular employment or vocation shall be included in the calculation of workers' compensation benefits if the trooper was accidentally injured during the first quarter of calendar year 1997 and such injury arose out of and in the course of his or her assigned duties as auxiliary trooper with the department of public safety".

Effective date and applicability of subsec. (f). 2019, No. 85 (Adj. Sess.), § 24(c) provides: "Sec. 18 of this act shall take effect on January 1, 2021, and shall apply to injuries incurred on or after that date."

ANNOTATIONS

Analysis

1. Economic unemployment.

Average weekly wages must be determined by dividing total amount earned by claimant during 12 weeks prior to injury by 12, regardless of fact that he was unemployed several weeks during such period by reason of economic conditions. San Martin v. E. N. Rock & Sons Co., 106 Vt. 301, 172 A. 635 (1934).

2. Short employment.

Shortness of the time of employment which would authorize resort to wages of another employee in computing average weekly wages of injured employee, means shortness of time which elapsed since claimant entered employ of his employer at time of injury; "employment" being construed according to context and approved usage of language. San Martin v. E. N. Rock & Sons Co., 106 Vt. 301, 172 A. 635 (1934).

3. Casual employment.

Where claimant at time of his injury was engaged in his regular trade of stone cutter and in furtherance of regular business of his employer, which was that of manufacture of granite products, employment was not "casual." San Martin v. E. N. Rock & Sons Co., 106 Vt. 301, 172 A. 635 (1934).

4. Terms of employment.

In order to warrant resort to wages of another employee in computing average weekly wages because of the "terms of the employment," it must be shown not merely that economic or other conditions differentiate case from one occurring during normal or boom times, but also that such conditions applied differently or in greater degree to claimant than to his fellow workmen, and thus made his average earnings for twelve weeks prior to injury an unfair measure. San Martin v. E. N. Rock & Sons Co., 106 Vt. 301, 172 A. 635 (1934).

5. Volunteers.

Provision of subsection (a) of this section, that in instances where it is impracticable to compute employee's rate of remuneration, compensation can be based on earnings of other persons employed in the same work or by a person in the same grade and class of employment, does not apply where there are no wages at all, such as part-time student volunteer. Wolfe v. Yudichak, 153 Vt. 235, 571 A.2d 592 (1989).

6. Business profits.

In computing an average weekly wage for purposes of entitlement to disability benefits, profits from a business are not the equivalent of wages, and are no substitute for wages. Hotaling v. St. Johnsbury Trucking Co., 153 Vt. 581, 572 A.2d 1351 (1990).

Income received by an injured worker from a trash-hauling business started prior to his injury and continuing after award of temporary total disability benefits could not be used to reduce claimant's entitlement to temporary partial disability benefits; evidence of claimant's level of functioning and mobility supported finding of total disability, and provision calling for combining earnings from concurrent employment with insured employers or self-insurers was inapplicable on the record. Hotaling v. St. Johnsbury Trucking Co., 153 Vt. 581, 572 A.2d 1351 (1990).

7. Cost of living increases .

Decision of the Commissioner of the Department of Labor and Industry that the date workers' compensation claimant's returned to work was the operative date from which to calculate cost of living increases for permanent partial disability benefits was consistent with the plain language of the relevant statutes and regulations. Laumann v. Department of Public Safety, 177 Vt. 52, 857 A.2d 309 (June 25, 2004).

The Department of Labor and Industry erred in its interpretation of provision of this section authorizing cost of living increases in concluding that a permanent total disability claimant's weekly compensation rate could not exceed her average weekly wage. Morin v. Essex Opticalhe Hartford, 178 Vt. 29, 868 A.2d 729 (January 28, 2005).

Cited. Quinn v. Pate, 124 Vt. 121, 197 A.2d 795 (1964); Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

8. Wages.

As an employer's cost in providing health insurance measured neither the employee's benefit nor his compensation because the costs were not tied to the employee's labors but instead, were based on factors unconnected to the employee, the employer's contribution for health insurance, though determinable, did not accurately reflect the employee's labors or compensation as defined through wages for purposes of the Workers' Compensation Act. Lydy v. Trustaff, Inc., 194 Vt. 165, 76 A.3d 150 (2013).

As there was a split of authority with respect to whether fringe benefits were wages for the purpose of workers' compensation, and against the backdrop of Vermont Department of Labor's consistent interpretation of its own statute, other states' decisions were not compelling. Lydy v. Trustaff, Inc., 194 Vt. 165, 76 A.3d 150 (2013).

Commissioner of the Department of Labor properly concluded that allowing employer-paid health insurance benefits to be included in the average weekly wage calculation would upset the "delicate balance" that the law sought to maintain. Lydy v. Trustaff, Inc., 194 Vt. 165, 76 A.3d 150 (2013).

§ 651. Voluntary payments.

Payments made by an employer or his or her insurer to an injured worker during the period of his or her disability, or to his or her dependents, which, by the provisions of this chapter, were not due and payable when made, may, subject to the approval of the Commissioner, be deducted from the amount to be paid as compensation.

Amended 1977, No. 182 (Adj. Sess.), § 14, eff. May 3, 1978; 1981, No. 165 (Adj. Sess.), § 1.

History

Source. V.S. 1947, § 8105. P.L. § 6530. G.L. § 5791. 1917, No. 171 , § 3. 1915, No. 164 , § 18.

Amendments--1981 (Adj. Sess.). Substituted "worker" for "workman" following "injured".

Amendments--1977 (Adj. Sess.). Deleted the second sentence.

ANNOTATIONS

1. Overpayment.

Commissioner's decision regarding the short-term disability benefits was erroneous because the claimant received two forms of wage replacement from her employer for the same injury, resulting in receipt of wage replacement greater than 100 percent of her wages; the employer made payments to the claimant under the terms of a collective bargaining agreement, as well as the retroactive temporary total disability payments it was ordered to make. Conant v. Entergy Corp., 202 Vt. 390, 149 A.3d 957 (2016).

Commissioner of Labor and Industry properly held that an overpayment of temporary disability benefits should be deducted from the claimant's permanent workmen's compensation award since the Commissioner is empowered to deduct from the amount to be paid as compensation the amount of prior payments that were not due and payable. Bishop v. Town of Barre, 140 Vt. 564, 442 A.2d 50 (1982).

§ 652. Periodical payments; lump sum payments.

  1. Upon application of either party, the Commissioner may authorize compensation to be paid monthly or quarterly instead of weekly, having regard to the welfare of the employee and the convenience of the employer.
  2. Upon application of the employee, if the Commissioner finds it to be in the best interest of the employee or the employee's dependents, the Commissioner may order the payment of permanent disability benefits pursuant to section 644 or 648 of this title to be paid in a lump sum.
  3. Unless otherwise requested by the claimant, an order for a lump sum payment of permanent partial or permanent total disability benefits or a lump sum settlement of a disputed claim shall include a provision accounting for excludable expenses and prorating the remainder of the lump sum payment in the manner set forth by the Social Security Administration in order to protect the claimant's entitlement to Social Security benefits.

    Amended 1999, No. 97 (Adj. Sess.), § 2; 2005, No. 212 (Adj. Sess.), § 7, eff. May 29, 2006.

History

Source. V.S. 1947, § 8106. P.L. § 6531. G.L. § 5792. 1917, No. 171 , § 3. 1915, No. 164 , § 19.

Reference in text. The Social Security Administration, referred to in subsec. (c), is codified as 42 U.S.C. § 901 et seq.

Amendments--2005 (Adj. Sess.). Subsection (c): Added.

Amendments--1999 (Adj. Sess.). Added "lump sum payments" at the end of the section catchline; designated the existing provisions of the section as subsec. (a) and deleted "in his discretion" preceding "the Commissioner" in that subsection and added subsec. (b).

ANNOTATIONS

1. Applicability.

Claimant's right to receive compensation and employer's obligation to pay it both accrued at the time of claimant's injury and were governed by the version of this section in effect at that time. Application of the 2000 amendment of the section would alter the preexisting rights of the parties. Therefore, 1 V.S.A. § 214(b)(2) prohibits its retroactive application. Sanz v. Douglas Collins Construction, 180 Vt. 619, 910 A.2d 914 (mem.) (October 4, 2006).

§ 653. Repealed. 1977, No. 182 (Adj. Sess.), § 22, eff. May 3, 1978.

History

Former § 653. Former § 653, relating to commutation of payments, was derived from V.S. 1947, § 8107; 1947, No. 202 , § 8266; P.L. § 6532; G.L. § 5793; 1917, No. 173 , § 4; 1915, No. 164 , § 20.

§ 654. Trustee in case of lump payments; appointment; expense.

Whenever, for any reason, the Commissioner deems it expedient, any lump sum which is to be paid as provided in section 653 of this title shall be paid by the employer to some bank, banking institution, or trust company to be appointed by the Commissioner as trustee to administer or apply the same for the benefit of the persons entitled thereto in the manner provided by the Commissioner. The payment of such money by the employer, evidenced by the receipt of the trustee, shall operate as a satisfaction of the compensation. In the appointment of such trustee preference shall be given, in the discretion of the Commissioner, to the choice of the employee or the dependents of the deceased employee. The expense of the administration of such trust shall be fixed by the Commissioner and shall be a charge upon the compensation so deposited.

History

Source. V.S. 1947, § 8108. P.L. § 6533. G.L. § 5794. 1917, No. 173 , § 5. 1915, No. 164 , § 21.

Reference in text. Section 653 of this title, referred to in the first sentence, was repealed by 1977, No. 182 (Adj. Sess.), § 22, eff. May 3, 1978.

§ 655. Procedure in obtaining compensation; medical examination; video and audio recording.

After an injury and during the period of disability, if so requested by his or her employer, or ordered by the Commissioner, the employee shall submit to examination, at reasonable times and within a two-hour driving radius of the residence of the injured employee, by a duly licensed physician or surgeon designated and paid by the employer. The Commissioner may in his or her discretion permit an examination outside the two-hour driving radius if it is necessary to obtain the services of a provider who specializes in the evaluation and treatment specific to the nature and extent of the employee's injury. The employee may make a video or audio recording of any examination performed by the insurer's physician or surgeon or have a licensed health care provider designated and paid by the employee present at the examination. The employer may make an audio recording of the examination. The right of the employee to record the examination shall not be construed to deny to the employer's physician the right to visit the injured employee at all reasonable times and under all reasonable conditions during total disability. If an employee refuses to submit to or in any way obstructs the examination, the employee's right to prosecute any proceeding under the provisions of this chapter shall be suspended until the refusal or obstruction ceases, and compensation shall not be payable for the period which the refusal or obstruction continues.

Amended 2009, No. 142 (Adj. Sess.), § 16; 2013, No. 199 (Adj. Sess.), § 62, eff. June 24, 2014.

History

Source. V.S. 1947, § 8109. 1947, No. 202 , § 8268. P.L. § 6534. G.L. § 5795. 1917, No. 171 , § 3. 1915, No. 164 , § 22.

Amendments--2013 (Adj. Sess.). Substituted "within a two-hour driving radius of the residence of the injured employee" for "places" following "at reasonable times and" in the first sentence, and added the second sentence.

Amendments--2009 (Adj. Sess.) Section amended generally.

Cross References

Cross references. Examination by independent medical examiners, see § 667 of this title.

§ 655a. Release of relevant medical records by health care providers; Department to oversee release and use of relevant medical information.

  1. Health care providers examining or attending the examination of an injured worker pursuant to this chapter shall provide relevant medical records and reports as requested by the injured worker, the employer, or the Department regarding the diagnosis, condition, or treatment of the worker, permanent impairment, or any restrictions or limitations on the worker's ability to work upon receiving a written medical release authorization from the injured worker. The authorization shall be on a form approved by the Department. If the relevance of any medical information is disputed, the Department shall determine whether the requested medical information is relevant.
  2. Medical information relevant to the specific claim includes a past history of complaints or treatment of a condition similar to that presented in the claim or other conditions related to the same body part. Information that may be requested includes:
    1. Minimum data to justify services and payment, including that on the standard paper 1500 form or electronic 837 form.
    2. Office notes of the examination relating to the injury diagnosis or treatment.
    3. Any other relevant provider records contained in the file.
  3. An injured worker shall only be obligated to sign a medical record release authorization approved by the Department.
  4. Any medical information received by the employer or the insurance carrier that is found not to be relevant to the claim may not be used to deny or limit a claim. The Commissioner may order that specific disclosure requests be denied or rescinded and may make such other interim orders as are appropriate.
  5. Any medical information received in conjunction with a claim shall be used only for the purpose of advancing or defending a claim relating to the injury or of investigating a claim of false representation or of ensuring compliance with the workers' compensation statutes and rules.

    Added 2011, No. 50 , § 4.

§ 656. Notice of injury and claim for compensation.

  1. A proceeding under the provisions of this chapter for compensation shall not be maintained unless a notice of the injury has been given to the employer as soon as practicable after the injury occurred, and unless a claim for compensation with respect to an injury has been made within six months after the date of the injury; or, in case of death, within six months after death, unless the claimant had made a claim for compensation prior to death.
  2. The date of injury, or in the case of occupational disease, the date of injurious exposure shall be the point in time when the injury or disease, and its relationship to the employment is reasonably discoverable and apparent. If that date occurs after the employee has ceased all employment, the employee shall be entitled to reasonable and necessary medical treatment necessitated by the injury and permanent partial or permanent total disability compensation based on the employee's average weekly wage at the time of the last work-related exposure.
  3. The notice and claim may be given or made by any person claiming to be entitled to compensation or by someone in the employee's behalf. If payments of compensation have been made voluntarily, the making of a claim within this period shall not be required. If the claim is denied after voluntary payments were made, the claimant shall commence proceedings under this chapter within six months from the date of denial.

    Amended 1993, No. 225 (Adj. Sess.), § 9; 1999, No. 41 , § 5.

History

Source. V.S. 1947, § 8110. P.L. § 6535. 1919, No. 159 , § 4. G.L. § 5796. 1915, No. 164 , § 23.

Amendments--1999. Designated the first sentence of the former undesignated paragraph as subsec. (a), and in that subsec. substituted "unless the claimant had made a claim for compensation prior to death" for "whether or not a claim has been made by the employee for compensation"; rewrote the former second sentence and designated it as subsec. (b); and designated the former third through fifth sentences as subsec. (c).

Amendments--1993 (Adj. Sess.). Substituted "injury occurred" for "happening thereof" following "practicable after the" in the first sentence, rewrote the former second sentence as the present second and third sentences, added the fifth sentence, and made other minor changes in phraseology in the fourth and fifth sentences.

Cross References

Cross references. Reports of accidents by employers, see § 701 of this title.

Sufficiency of notice of injury, see § 660 of this title.

ANNOTATIONS

Analysis

1. Construction with other laws.

Proceeding for compensation does not come within provision of 12 V.S.A. § 464 that provisions of statute of limitations shall not affect action otherwise specially limited, since six months' limitation established by this section does not apply to commencement of action but only to preliminary requirement of making claim on employer. Fitch v. Parks & Woolson Machine Co., 109 Vt. 92, 191 A. 920 (1937).

2. Purpose.

The purpose of requiring claim for compensation is to give employer opportunity to inquire into nature and extent of injuries through aid of physician or surgeon; and to otherwise investigate claim when matter is fresh in minds of those who saw or knew of accident. Petraska v. National Acme Co., 95 Vt. 76, 113 A. 536 (1921).

3. Necessity of claim.

If injured employee makes no claim for compensation within six months after date of injury, unless excused by voluntary payments of compensation, Commissioner has no jurisdiction in the matter. Petraska v. National Acme Co., 95 Vt. 76, 113 A. 536 (1921).

4. Filing claim.

Claim for compensation prescribed by this section need not be filed with Commissioner or carried into record in any way. Fitch v. Parks & Woolson Machine Co., 109 Vt. 92, 191 A. 920 (1937).

5. Date of injury.

"Date of injury" for purposes of giving notice and filing a claim pursuant to this section is the point in time when an injury becomes reasonably discoverable and apparent. Hartman v. Ouellette Plumbing & Heating Corp., 146 Vt. 443, 507 A.2d 952 (1985).

6. Knowledge of accident.

Where Commissioner found that employer had knowledge of accident within meaning of section 660 of this title, proceedings were not barred under this section by failure to make claim within six months. Fitch v. Parks & Woolson Machine Co., 109 Vt. 92, 191 A. 920 (1937).

Cited. Angolano v. City of South Burlington, 142 Vt. 131, 453 A.2d 402 (1982); Merrill v. Town of Ludlow, 147 Vt. 186, 514 A.2d 1050 (1986); King v. Federal Deposit Insurance Corp., 785 F. Supp. 58 (D. Vt. 1992); Longe v. Boise Cascade Corp., 171 Vt. 214, 762 A.2d 1248 (2000); Kraby v. Vermont Telephone Co., 177 Vt. 614, 868 A.2d 689 (mem.) (December 14, 2004).

§ 657. After court judgment against employee.

In case, through mistake of law or fact, a suit has been brought to recover damages in any court and final judgment is against the employee, the limitation in section 656 of this title shall not begin to run until six months after such suit has been finally determined.

History

Source. V.S. 1947, § 8111. P.L. § 6536. 1919, No. 159 , § 4. G.L. § 5796. 1915, No. 164 , § 23.

Cross References

Cross references. Sufficiency of notice of injury, see § 660 of this title.

ANNOTATIONS

1. Construction with other laws.

Section 624 of this title, relating to rights of an employee with respect to compensable injuries sustained under circumstances creating liability in some person other than the employer, and this section are sufficiently cognate to be in pari materia and are to be construed with reference to each other as parts of one system to ascertain legislative intent. Belfore v. Vermont State Highway Department, 108 Vt. 396, 187 A. 797 (1936).

§ 658. Form of notice and claim.

The notice and claim required under the provisions of section 656 of this title shall be in writing. Such notice shall contain the name and address of the employee, shall state in ordinary language the time, place, nature, and cause of the injury and shall be signed by the employee or by a person in his or her behalf, or, in the event of his or her death, by any one or more of his or her dependents or by a person in their behalf. The notice and the claim may be combined.

History

Source. V.S. 1947, § 8112. P.L. § 6537. G.L. § 5797. 1915, No. 164 , § 24.

ANNOTATIONS

1. Construction with other laws.

While notice of injury and claim for compensation may be combined under this section, they are in effect separate and distinct documents, intended to serve different and independent purposes; and the provisions of section 660 of this title, relative to the effect of faulty or delayed notice of injury in certain circumstances, apply only to the notice of injury. Petraska v. National Acme Co., 95 Vt. 76, 113 A. 536 (1921).

§ 659. Giving of notice and making of claim.

A notice under the provisions of this chapter shall be given to the employer, or, if the employer is a partnership, then to any one of the partners. If the employer is a corporation, then the notice may be given to any agent of the corporation upon whom process may be served, or to any officer of the corporation, or any agent in charge of the business at the place where the injury occurred. Such notice shall be given by delivering it or by sending it by mail by registered letter addressed to the employer at his, her, or its last known residence or place of business. The foregoing provisions shall apply to the making of a claim.

History

Source. V.S. 1947, § 8113. P.L. § 6538. G.L. § 5798. 1915, No. 164 , § 25.

§ 660. Sufficiency of notice of injury.

  1. A notice given under the provisions of this chapter shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place, nature, or cause of the injury, or otherwise, unless it is shown that the employer was in fact misled to the injury as a result of the inaccuracy. Want of or delay in giving notice, or in making a claim, shall not be a bar to proceedings under the provisions of this chapter, if it is shown that the employer, the employer's agent, or representative had knowledge of the accident or that the employer has not been prejudiced by the delay or want of notice. Proceedings to initiate a claim for a work-related injury pursuant to this chapter may not be commenced after three years from the date of injury. This section shall not be construed to limit subsequent claims for benefits stemming from a timely filed work-related injury claim.
  2. Notwithstanding subsection (a) of this section, a claim for occupational disease shall be made within two years of the date the occupational disease is reasonably discoverable and apparent.

    Amended 1993, No. 225 (Adj. Sess.), § 10; 1999, No. 41 , § 6; 2003, No. 132 (Adj. Sess.), § 6, eff. May 26, 2004.

History

Source. V.S. 1947, § 8114. P.L. § 6539. 1925, No. 101 . G.L. § 5799. 1915, No. 164 , § 26.

Amendments--2003 (Adj. Sess.) Subsec. (a): Substituted "for a work-related injury" for "for benefits" and substituted "three years" for "six years" in the third sentence, and added the fourth sentence.

Amendments--1999. Designated the former undesignated paragraph as subsec. (a), substituted "this chapter" for "sections 656 and 657 of this title" and added subsec. (b).

Amendments--1993 (Adj. Sess.). Substituted "the injury as a result of the inaccuracy" for "his injury thereby" following "misled to" in the first sentence, added the third sentence, and made other minor changes in phraseology.

ANNOTATIONS

Analysis

1. Burden of proof.

Under this section proceedings are not barred if claimant can show seasonable knowledge, and it is not necessary to show lack of prejudice as well. Fitch v. Parks & Woolson Machine Co., 109 Vt. 92, 191 A. 920 (1937).

Under this section claimant has burden of showing either that employer had knowledge of injury or that employer was not prejudiced by want of or delay in claimant's giving notice thereof or in making for compensation, but that he need not show both. Larrabee v. Citizens Telephone Co., 106 Vt. 44, 169 A. 784 (1934).

2. Application.

Fourteen years after he reached a medical end result, despite the applicability of the workers' compensation rule governing procedure once an employee with a work-related injury reached a medical end result, a claimant for permanent partial disability benefits did not meet the Longe standard to avoid the applicable statute of limitations and therefore could not prevail on his claim. There had been no relevant statutory amendment; neither equitable estoppel nor equitable tolling applied in the face of the employer's inaction alone; and the court declined to modify the Longe holding to recognize that breach of a duty imposed by rule, and not by statute, had equal tolling effect. Smiley v. State, 198 Vt. 529, 117 A.3d 441 (2015).

The Commissioner did not err in finding that claimant's permanent injury was not reasonably discoverable and apparent until the point of medical end result, and that his claim was therefore timely. Kraby v. Vermont Telephone Co., 177 Vt. 614, 868 A.2d 689 (mem.) (December 14, 2004).

Absent a statutory duty or circumstances sufficient to invoke doctrines of equitable estoppel or equitable tolling, an employer has no duty to inform an employee of his or her rights under the workers' compensation act. Longe v. Boise Cascade Corp., 171 Vt. 214, 762 A.2d 1248 (2000).

Employer was not required to pay permanent partial disability (PPD) benefits to injured employee, since employer was not barred from raising statute of limitations as a defense to payment of PPD benefits, as it had no duty to investigate employee's permanency status or inform him of his right to PPD benefits. Longe v. Boise Cascade Corp., 171 Vt. 214, 762 A.2d 1248 (2000).

Provisions relative to effect of faulty or delayed notice of injury apply only to notice of injury and not to claim for compensation, even though the notice and claim may be combined under section 658 of this title. Petraska v. National Acme Co., 95 Vt. 76, 113 A. 536 (1921).

3. Knowledge of accident.

Where employer had knowledge of accident within meaning of this section, proceedings were not barred under section 656 of this title by failure to make claim within six months. Fitch v. Parks & Woolson Machine Co., 109 Vt. 92, 191 A. 920 (1937).

4. Occupational disease.

Subsection (b) of this section applies to claims where the last injurious exposure to an occupational disease occurred prior to the date of enactment of the section but the time limitation for such a claim had not yet lapsed under repealed statute of repose, 21 V.S.A. § 1006(a). Murray v. Luzenac Corp., 175 Vt. 529, 830 A.2d 1 (mem.) (2003).

Nothing in subsection (b) implies an intent for the discovery rule to apply retroactively to occupational diseases. Carter v. Fred's Plumbing & Heating, Inc., 174 Vt. 572, 816 A.2d 1280 (mem.) (2002).

Because of the plain language of the former occupational disease law, and because the Legislature chose not to apply subsection (b) retroactively, plaintiff lacked a statutory or common law cause of action and his claim that he was denied a constitutional right to a remedy was without merit as it is within the Legislature's authority to define and limit a cause of action. Carter v. Fred's Plumbing & Heating, Inc., 174 Vt. 572, 816 A.2d 1280 (mem.) (2002).

Cited. Hartman v. Ouellette Plumbing & Heating Corp., 146 Vt. 443, 507 A.2d 952 (1985).

§ 660a. Electronic filing of reports of injury.

  1. For the purposes of this section:
    1. "Electronic data interchange" or "EDI technology" means the computer-to-computer exchange of business transactions in the standardized structured electronic format.
    2. "Implementation plan" means the written document prepared by an insurance carrier specifying a timetable for reporting by EDI.
    3. "Reporter" means the insurer who is responsible for reporting injuries to the Department.
  2. When an insurance carrier uses electronic data interchange processes and technology, the level of record detail in the report shall be equivalent to that required in a written paper record.
  3. Each insurance carrier shall transmit data elements by electronic data interchange to the Department by the dates specified in this section. An insurance carrier shall provide complete, valid, accurate data for the data as required by this section. Each electronic transmission of data shall include appropriate header and trailer records.
  4. In order to begin EDI reporting, an insurance carrier shall submit to the Commissioner an implementation plan pursuant to rules adopted by the Department.
  5. No later than July 1, 2004, all first reports of injury shall be filed by the insurance carrier electronically. The Commissioner may grant an insurance carrier a variance if the insurance carrier documents to the satisfaction of the Commissioner that compliance would cause the insurance carrier "undue hardship," which, for the purposes of this section, means significant difficulty or expense.

    Added 2001, No. 105 (Adj. Sess.), § 1, eff. May 15, 2002.

§ 661. Limitation of time as regards minors and persons with a mental condition or psychiatric disability.

Limitation of time provided by this chapter shall not run as against any person who is incompetent or a minor dependent so long as such person has no guardian.

Amended 2013, No. 96 (Adj. Sess.), § 138.

History

Source. V.S. 1947, § 8115. P.L. § 6540. G.L. § 5800. 1915, No. 164 , § 27.

Amendments--2013 (Adj. Sess.). Catchline: Substituted "persons with a mental condition or psychiatric disability" for "insane".

Deleted "mentally" following "who is".

§ 662. Agreements; required payments in absence of.

  1. If the employer and an injured employee or the dependents of a deceased employee enter into an agreement in regard to compensation payable under the provisions of this chapter, a memorandum thereof shall be filed with the Commissioner.  If approved by the Commissioner, such agreement shall be enforceable and subject to modification as provided by sections 668 and 675 of this title.  The Commissioner shall approve such an agreement only when the terms thereof conform to the provisions of this chapter.  However, a compromise agreement may be approved by the Commissioner when he or she is clearly of the opinion that the best interests of such employee or such dependents will be served thereby.  A compromise settlement during pendency of an appeal to Superior Court or to Supreme Court shall be effective only with the approval of the Commissioner in accordance with this section.
  2. In the absence of an agreement pursuant to subsection (a) of this section, the employer or insurance carrier shall notify the Commissioner and the employee in writing that the claim is denied and the reasons therefor. Upon the employee's application for a hearing under section 663 of this title, within 60 days, the Commissioner shall review the evidence upon which denial is based and if the evidence does not reasonably support the denial, the Commissioner shall order that payments be made until a hearing is held and a decision is rendered. Payments pursuant to this subsection shall not be deemed an admission of liability by the employer nor shall such payments preclude subsequent agreement under subsection (a) of this section or prejudice the rights of either party to hearing or appeal under this chapter. If the Commissioner's decision, after a hearing, is that the employee was not entitled to any or all benefits paid between the initial denial and the final decision, upon request of the employer, the Commissioner may order that the employee repay all benefits to which the employee was not entitled. The employer may enforce such a repayment order in any court of law having jurisdiction of the amount involved. Nothing in this section shall require the Commissioner to order payments pending a hearing if the Commissioner concludes that the benefit at issue is not compensable regardless of the lack of evidence supporting the denial. For the purposes of this section, any written communication by an unrepresented claimant that questions the denial of any benefit shall be deemed to be an application for hearing under section 663 of this title.
  3. Whenever payment of a compensable claim is refused, on the basis that another employer or insurer is liable, the Commissioner, after notice to interested parties and a review of the claim, but in no event later than 30 days, shall order that payments be made by one employer or insurer until a hearing is held and a decision is rendered. For the purposes of this review, the employer or insurer at the time of the most recent personal injury for which the employee claims benefits shall be presumed to be the liable employer or insurer and shall have the burden of proving another employer's or insurer's liability. Payments pursuant to this subsection shall not be deemed an admission or conclusive finding of an employer's or insurer's liability nor shall payments preclude subsequent agreement under subsection (a) of this section or prejudice the rights of either party to a hearing or appeal under this chapter.
  4. Where more than one employer or insurer may be liable for an employee's occupational disease, the employer in whose service the employee was last injuriously exposed to the hazard that caused the disease, and the insurance carrier, if any, on the risk when the employee was last exposed, shall be liable if it can be proven that the service for the last employer causally contributed to the disease.
  5. In any dispute between employers and insurers arising under subsection (c) or (d) of this section, after payment to the claimant, the Commissioner may order that the dispute be resolved through arbitration rather than the formal hearing process under sections 663 and 664 of this title. Qualifications for arbitrators and standards for the arbitration process shall be established by the Commissioner by rule. If arbitration is ordered, the process shall proceed as follows:
    1. The parties shall select an arbitrator from a list provided by the Commissioner.
    2. The arbitrator shall:
      1. Determine apportionment of the liability for the claim, including costs and attorney's fees, among the respective employers or insurers, or both. The apportionment may be limited to one or more parties. If the parties do not agree, the costs of arbitration may be apportioned among the parties by the arbitrator.
      2. Issue a written decision which shall be final.

        Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1981, No. 204 (Adj. Sess.), § 9; 1983, No. 164 (Adj. Sess.), eff. April 20, 1984; 1993, No. 225 (Adj. Sess.), § 10a; 1999, No. 41 , § 7; 1999, No. 97 (Adj. Sess.), § 4; 2005, No. 212 (Adj. Sess.), § 6, eff. May 29, 2006.

History

Source. V.S. 1947, § 8116. P.L. § 6541. 1923, No. 105 , § 4. G.L. § 5801. 1917, No. 171 , § 3. 1915, No. 164 , § 31.

Revision note. Inserted "of this section" following "subsection (a)" in subsecs. (b) and (c) and "of this title" following "section 663" in subsec. (b) to conform references to V.S.A. style.

Amendments--2005 (Adj. Sess.). Subsec. (b): In the second sentence, added "within 60 days" following "section 663 of this title" and twice substituted "commissioner shall" for "commissioner may"; and added the last four sentences.

Amendments--1999 (Adj. Sess.). Subsec. (e): Added.

Amendments--1999. Subsec. (d): Added.

Amendments--1993 (Adj. Sess.). Subsec. (c): Inserted "but in no event later than 30 days" preceding "shall order that payments" in the first sentence.

Amendments--1983 (Adj. Sess.). Subsec. (c): Added.

Amendments--1981 (Adj. Sess.). Added "; required payments in absence of" at the end of the catchline, designated existing provisions of section as subsec. (a) and added subsec. (b).

Amendments--1973 (Adj. Sess.). Substituted "superior" for "county" following "appeal to" in the last sentence.

ANNOTATIONS

Analysis

1. Agreement as bar to action.

Where minor, employed contrary to provisions of child labor law, thus making this chapter inapplicable, was injured, agreement of settlement under this section, and acceptance of payment thereunder, constituted no bar to common law action against employer. Wlock v. Fort Dummer Mills, 98 Vt. 449, 129 A. 311 (1925).

2. Interim order for payment of benefits.

Because the Commissioner can judge the constitutionality of her implementation of interim orders for payment of benefits under this section, dismissal of plaintiff insurance company's claims against Commissioner's implementation of the statute was appropriate. Travelers Indemnity Co. v. Wallis, 176 Vt. 167, 845 A.2d 316 (2003).

Plaintiff insurance company could bring a declaratory judgment action to challenge the constitutionality of the standard that "the evidence does not reasonably support the denial" of interim orders for payment of benefits in this section, and such a challenge is not an appeal requiring certification of questions of fact and law by the Commissioner. Travelers Indemnity Co. v. Wallis, 176 Vt. 167, 845 A.2d 316 (2003).

3. Burden of proving liability of insurer .

Nothing in the provision of this section governing the burden of proof in cases where payment of a compensable claim is refused on the basis that another employer or insurer is liable suggests that it is inapplicable if the insurer that refuses payment had paid in the past. Farris v. Bryant Grinder Corporation/Wausau Insurance Co., 177 Vt. 456, 869 A.2d 131 (January 14, 2005).

Workers' compensation insurer failed in its argument that the provision of this section governing the burden of proof in cases where payment of a compensable claim is refused on the basis that another employer or insurer is liable does not apply where the Commissioner's allocation decision is appealed to the superior court. Farris v. Bryant Grinder Corporation/Wausau Insurance Co., 177 Vt. 456, 869 A.2d 131 (January 14, 2005).

Provision of this section governing the burden of proof in cases where payment of a compensable claim is refused on the basis that another employer or insurer is liable required the Superior Court to assign the burden of proof to the successor insurer, and the Court erred in charging the jury that neither party bore that burden. Farris v. Bryant Grinder Corporation/Wausau Insurance Co., 177 Vt. 456, 869 A.2d 131 (January 14, 2005).

4. Voiding of agreement.

Statute governing workers' compensation settlement agreements requires the Commissioner to consider whether a proposed agreement serves a claimant's best interests and authorizes the Commissioner to approve or reject an agreement only at the time it is initially presented. The statute does not give Commissioner authority to revisit and retract a settlement agreement at a later date or to void an agreement on public policy grounds alone. Therefore, it was error for Commissioner to void the general release language in the parties' settlement agreement on the grounds that it was impermissibly broad and violated public policy. Clayton v. J.C. Penney Corp., 206 Vt. 28, 177 A.3d 522 (2017).

Cited. Bosquet v. Howe Scale Co., 96 Vt. 364, 120 A. 171 (1923); Montgomery v. Brinver Corp., 142 Vt. 461, 457 A.2d 644 (1983); Wood v. Fletcher Allen Health Care, 169 Vt. 419, 739 A.2d 1201 (1999); Longe v. Boise Cascade Corp., 171 Vt. 214, 762 A.2d 1248 (2000); Cehic v. Mack Molding, Inc., 179 Vt. 602, 895 A.2d 167 (mem.) (January 13, 2006).

§ 663. Hearings, where held; decision.

  1. If the compensation is not fixed by agreement, either party may apply to the Commissioner for hearing and award in the premises who shall set a time and place for hearing and give at least six days' notice thereof to the parties. The hearing shall be held at a place designated by the Commissioner. No proposed findings of fact shall be required from the parties unless ordered by the Commissioner. If ordered, the proposed findings of fact shall be submitted within 30 days after conclusion of the hearing.
  2. The decision may include abbreviated findings of fact or conclusions of law, or both, when appropriate.

    Amended 1965, No. 194 , § 10; 1977, No. 182 (Adj. Sess.), § 15, eff. May 3, 1978; 2007, No. 208 (Adj. Sess.), § 11.

History

Source. V.S. 1947, § 8117. P.L. § 6542. 1931, No. 114 . 1927, No. 100 , § 1. 1919, No. 159 , § 5. G.L. § 5802. 1917, No. 171 , § 3. 1915, No. 164 , § 32.

Amendments--2007 (Adj. Sess.). Added "decision" following "held" in the section heading, designated the existing provisions of the section as subsec. (a) and substituted "The hearing" for "Such hearing" at the beginning of the second sentence and added the third and fourth sentences, and added subsec. (b).

Amendments--1977 (Adj. Sess.). Rewrote the second sentence and deleted the third and fourth sentences.

Amendments--1965. Substituted "district" for "municipal" preceding "court room" in the third sentence.

Effective and operative dates of 1965 amendment. 1965, No. 194 , § 18, provided that the act was to become effective July 1, 1965, but that section 10 of the act, which amended this section, was not to become operative until February 1, 1967.

Cross References

Cross references. Manner of giving notice of hearing, see § 666 of this title.

Trial and award, see § 664 of this title.

ANNOTATIONS

Cited. Bosquet v. Howe Scale Co., 96 Vt. 364, 120 A. 171 (1923); Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 421 A.2d 1291 (1980); Angolano v. City of South Burlington, 142 Vt. 131, 453 A.2d 402 (1982); Montgomery v. Brinver Corp., 142 Vt. 461, 457 A.2d 644 (1983); Wroten v. Lamphere, 147 Vt. 606, 523 A.2d 1236 (1987).

§ 663a. Workers' compensation dispute mediation.

  1. The Commissioner shall require mediation in certain workers' compensation disputes. In each case, after a request for formal hearing has been filed, in accordance with the rule, the Commissioner may determine whether the disputed issue and the parties are appropriate for mediation prior to a formal hearing and whether mediation would speed resolution of the dispute without the time and expense of a hearing. If the Commissioner determines that mediation is appropriate, the Commissioner shall order the parties to attend at least one mediation session prior to a scheduled hearing. Referring a case to mediation shall not cause a delay in setting a date for the formal hearing. The Commissioner shall, by rule, determine the procedures by which cases are selected and scheduled for mediation.
  2. The costs of mediation shall be divided evenly between the claimant and the employer, unless the parties agree otherwise. The cost of the mediation, up to the amount set by rule, shall be a cost recoverable by the claimant pursuant to section 678 of this title.
  3. The Commissioner shall select or make available a list of qualified individuals to act as mediators, which may include nonattorneys, provided they are experienced in workers' compensation, including former Department employees and insurance adjusters. The mediators shall be compensated at rates set by rule of the Commissioner.
  4. Prior to implementing this section, the Commissioner shall consult with the Department of Labor Advisory Council established by section 1306 of this title, the workers' compensation committees of the Vermont Bar Association and the Vermont Trial Lawyers' Association, representatives of insurers who provide workers' compensation coverage in Vermont, and with other appropriate parties.

    Added 2007, No. 208 (Adj. Sess.), § 10.

§ 663b. Fraud.

  1. Any claims of fraud submitted to the Department shall require action by the Commissioner to determine if further investigation is warranted. The Commissioner shall order the insurer to investigate specific allegations of claimant fraud and submit a written report to the Department. Once the insurer's report is received, the Commissioner shall afford the claimant an opportunity to respond in person or in writing within 30 days. The Commissioner may order additional information to be provided to the Department from the insurer or the claimant. The Department shall issue a determination on the fraud allegation, including penalties and any reimbursement as provided under section 708 of this title. The party may appeal the decision of the Commissioner as provided under 3 V.S.A. chapter 25.
  2. An employee found to have committed fraud in order to receive compensation under this chapter shall be ordered to repay all compensation fraudulently received in addition to other administrative penalties ordered by the Department. These payments shall not be charged to the employer for purposes of calculating its experience rating.

    Added 2013, No. 199 (Adj. Sess.), § 63, eff. June 24, 2014.

§ 664. Trial and award.

Within 60 days after a hearing is held, the Commissioner shall make an award supported by findings of fact and the applicable law and shall send a copy of the award to the parties. If the employee prevails at the hearing, the Commissioner's findings shall include the date on which the employer's obligation to pay compensation under this chapter began. The award shall include interest at the statutory rate computed from that date on the total amount of unpaid compensation.

Amended 1997, No. 19 , § 4.

History

Source. V.S. 1947, § 8118. 1939, No. 183 , § 1. P.L. § 6543. 1931, No. 114 . 1927, No. 100 , § 1. 1919, No. 159 , § 5. G.L. § 5802. 1917, No. 171 , § 3. 1915, No. 164 , § 32.

Amendments--1997 Amended section generally.

Cross References

Cross references. Costs, see § 678 of this title.

Determination of questions, see § 606 of this title.

Enforcement of award, see § 675 of this title.

Examination by independent medical examiners, see § 667 of this title.

Finality of award, see § 669 of this title.

Manner of trying causes, see § 604 of this title.

Modification of award, see § 668 of this title.

New hearings, see § 677 of this title.

Process and procedure, see § 602 of this title.

ANNOTATIONS

Analysis

1. Time of hearing.

Exceeding 60-day time limit within which to hold hearing under this section did not deprive Commissioner of Labor and Industry of jurisdiction to make workers' compensation award. Coleman v. United Parcel Service, 155 Vt. 646, 582 A.2d 151 (mem.) (1990).

2. Authority of commissioner.

While the Commissioner of Industrial Relations should pass upon the primary liability for a claim under this chapter, he is not required or authorized to pass upon the ultimate rights or liability as between carriers. Morrisseau v. Legac, 123 Vt. 70, 181 A.2d 53 (1962).

3. Award .

The award of the Commissioner is equivalent to a judgment of a trial court and doubtful findings must be construed to support it if this may reasonably be done. Norman v. American Woolen Co., 117 Vt. 28, 84 A.2d 125 (1951); Goodwin v. Fairbanks, Morse & Co., 123 Vt. 161, 184 A.2d 220 (1962).

*4. Basis.

Award under this chapter must be based upon evidence that injury happened at fixed time and place and was attributable to clearly traceable incident of his employment. Goodwin v. Fairbanks, Morse & Co., 123 Vt. 161, 184 A.2d 220 (1962).

*5. Interest.

Commissioner has authority to order the payment of interest on awards for any lapse of time subsequent to the due date of the award. Marsigli's Estate v. Granite City Auto Sales, Inc., 124 Vt. 467, 207 A.2d 158 (1965).

Order allowing interest from date of original award which required that accrued compensation be paid immediately did not contravene the established rule that interest could not be allowed between award and due date, nor prior to award. Marsigli's Estate v. Granite City Auto Sales, Inc., 124 Vt. 467, 207 A.2d 158 (1965).

Award by commissioner of industrial relations may not draw interest until there is a time fixed for its payment which necessarily must be subsequent to date of award and then only from the date so fixed; the payments are not overdue until that date has expired and Commissioner has no authority to award or order interest for any period prior to that date. Norman v. American Woolen Co., 117 Vt. 28, 84 A.2d 125 (1951).

*6. Exceptions.

Exception to award of Commissioner of Industrial Relations only raises question whether findings of fact are sufficient to support it. Norman v. American Woolen Co., 117 Vt. 28, 84 A.2d 125 (1951).

7. Review .

Thirty-day time period for filing notice of workers' compensation appeal, to either supreme court or superior court, began running when Commissioner mailed decision to claimant, rather than when Commissioner signed decision. Peabody v. Home Insurance Co., 170 Vt. 635, 751 A.2d 783 (mem.) (2000).

Cited. Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 421 A.2d 1291 (1980); Montgomery v. Brinver Corp., 142 Vt. 461, 457 A.2d 644 (1983).

§ 665. Repealed. 1985, No. 194 (Adj. Sess.), § 6.

History

Former § 665. Former § 665, relating to enforcement of awards, was derived from V.S. 1947, § 8119; 1939, No. 184 , § 1; P.L. § 6543; 1931, No. 114 ; 1927, No. 100 , § 1; 1919, No. 159 , § 5; G.L. § 5802; 1917, No. 171 , § 3; 1915, No. 164 , § 32; and amended by 1963, No. 134 , § 3.

The subject matter is now covered by § 675(a) of this title.

§ 666. Manner of giving notice of hearing.

Notices of hearings under the provisions of this chapter shall be given to the employee, employer, and to the insurance carrier. Such notice shall be given by delivering it or by sending it by mail, addressed to the employee, employer, and to such insurance company at his, her, or its last known residence or place of business. The foregoing provisions shall apply alike to individuals, partnerships, and corporations.

History

Source. V.S. 1947, § 8120. P.L. § 6544. G.L. § 5803. 1917, No. 173 , § 11.

§ 667. Examination by independent medical examiners.

  1. Whenever it appears that a dispute exists regarding the reasonableness and necessity of treatment for an injury, or regarding the claimant's ability to perform suitable work, including light duty work, or regarding any other medical issue, the Commissioner may appoint an independent medical examiner to examine the employee and report to the Commissioner. Whenever a dispute exists regarding the nature and extent of any permanent partial impairment which involves permanent partial disability ratings which differ by more than 10 percent, the Commissioner shall appoint an independent medical examiner to examine the employee and report to the Commissioner the examiner's opinion regarding the nature and extent of any permanent partial impairment. The opinion of the independent medical examiner as to degree of impairment shall be binding on the parties absent a showing of substantial error or omissions fraud or a gross departure from generally accepted medical practices. If a dispute involves permanent partial disability ratings which differ by 10 percent or less, the rating shall be determined by the Commissioner.
  2. A pool of independent medical examiners shall be established to perform independent medical examinations. Representatives of management and labor from the Governor's Advisory Council on Workers' Compensation, if available, otherwise other representatives of management and labor shall each submit a list of health care providers as proposed members of the pool. The Commissioner shall select the common names from both lists. If, in the opinion of the Commissioner, the number of independent medical examiners in the pool is not sufficient for any reason, or does not adequately represent a range of health care providers, the Commissioner shall select additional health care providers or request additional names. All health care providers in the pool shall receive training about the nature and purpose of workers' compensation and shall follow the guidelines developed by rule by the Commissioner. Where a dispute involves a determination of the degree of permanent partial disability, the independent medical examiner shall use the most recent edition of the American Medical Association Guides to the Evaluation of Permanent Impairment or the supplement provided by the Commissioner.
  3. The Commissioner shall determine fees to be paid to independent medical examiners for examinations pursuant to subsection 640(d) of this title. The fee shall be paid by the employer in an amount and proportion determined by the Commissioner.
  4. If a claimant fails or refuses to undergo an independent medical examination without good cause, the Commissioner may assess all or a part of the cost of the examination or any missed appointments against the claimant or may suspend payment of compensation to which the claimant may be entitled, or both.
  5. The independent medical examination report shall be admitted into evidence in any Superior Court appellate proceedings concerning the claim. The use of an independent medical examiner under this section shall not limit the right of a claimant to obtain his or her medical examination and report on any disputed medical issue.
  6. If an independent medical examiner is appointed, all parties to the dispute shall immediately provide the examiner with copies of all relevant medical records in their possession and shall assist the examiner in obtaining any other medical records deemed relevant to the proceedings.

    Amended 1963, No. 134 , § 4, eff. June 6, 1963; 1993, No. 225 (Adj. Sess.), § 11.

History

Source. V.S. 1947, § 8121. P.L. § 6545. 1921, No. 169 , § 1. G.L. § 5804. 1917, No. 171 , § 3. 1915, No. 164 , § 33.

Revision note. In the first sentence of subsec. (c), substituted "subsection 640(d)" for "subsection 642(d)" to correct an error in the reference.

Amendments--1993 (Adj. Sess.). Amended section generally.

Amendments--1963. Substituted "$15.00" for "$5.00" following "fee of" in the second sentence.

§ 668. Modification of awards.

Upon the Commissioner's own motion or upon the application of any party in interest upon the ground of a change in the conditions, or whenever doubts have arisen as to the jurisdiction of the Commissioner at the time the petition was presented, the Commissioner may at any time within six years of the date of award review any award by giving at least six days' notice thereof to the parties personally, or to the attorneys appearing in the cause. On such review, the Commissioner may make an order ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in this chapter. If it appears that the petition for hearing was presented without previous authority or that for other reason the Commissioner did not have jurisdiction in the cause, the Commissioner may make an order striking off the award, and shall state conclusions of fact and rulings of law and immediately send to the parties a copy of the award. Such a review shall not affect any money already paid.

Amended 1993, No. 225 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 8122. 1935, No. 163 , § 4. P.L. § 6546. 1933, No. 157 , § 6220. G.L. § 5805. 1917, No. 173 , § 6. 1915, No. 164 , § 34.

Amendments--1993 (Adj. Sess.). Inserted "within six years of the date of award" preceding "review any award" in the first sentence, deleted "such award as regards" preceding "any money" in the fourth sentence and made other minor changes in phraseology.

Cross References

Cross references. Revision of court decree to conform to modification of award, see § 676 of this title.

ANNOTATIONS

Analysis

1. Nature of proceeding.

Application under this section to modify an agreement or award is not a new proceeding, but is based upon a jurisdiction acquired through the original proceeding, either on application for an award of compensation under section 663 of this title or on the filing of a memorandum of agreement in regard to compensation pursuant to section 662 of this title. Bosquet v. Howe Scale Co., 96 Vt. 364, 120 A. 171 (1923).

2. Time for making modifications.

An order granting summary judgment to five of six potentially liable parties was not a final order, and as such, the Commissioner's ruling in the case was properly amenable to revision; prior to the entry of a decision adjudicating all the relative claims and rights of the parties, the Commissioner could amend her ruling. Carter v. Fred's Plumbing & Heating, Inc., 174 Vt. 572, 816 A.2d 1280 (mem.) (2002).

The phrase "at any time" does not give the Commissioner continuing jurisdiction, unlimited as to time, but means at any time before final disposition of a claim pending with him. Bosquet v. Howe Scale Co., 96 Vt. 364, 120 A. 171 (1923).

Where injured employee and his employer had agreed on the amount of compensation pursuant to section 662 of this title, had filed a memorandum thereof and the amount agreed upon had been paid, Commissioner was without jurisdiction to reopen the case three years after filing of the settlement receipt on ground of changed conditions and order payment of additional compensation. Bosquet v. Howe Scale Co., 96 Vt. 364, 120 A. 171 (1923).

Cited. Quinn v. Pate, 124 Vt. 121, 197 A.2d 795 (1964).

Law review commentaries

Law review. For note relating to reopening and modification of workers' compensation awards, see 9 Vt. L. Rev. 289 (1984).

§ 669. Finality of award.

An award of the Commissioner shall, in the absence of fraud, be conclusive between the parties except as provided in section 668 of this title, unless an appeal is taken therefrom as hereinafter provided.

History

Source. V.S. 1947, § 8123. P.L. § 6547. G.L. § 5806. 1917, No. 171 , § 3. 1915, No. 164 , § 35.

ANNOTATIONS

Cited. Howard v. Office of Secretary of State, 140 Vt. 139, 435 A.2d 962 (1981); Stamper v. University Apartments, Inc., 147 Vt. 552, 522 A.2d 227 (1986).

§ 670. Appeals to Superior Court.

Within 30 days after copies of an award have been sent as provided by this chapter, either party may appeal to the Superior Court of a county wherein a civil action between the parties would be triable. Either party shall be entitled to a trial by jury.

Amended 1963, No. 134 , § 5, eff. June 6, 1963; 1971, No. 185 (Adj. Sess.), § 194, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source. 1953, No. 125 , § 3. V.S. 1947, § 8124. P.L. § 6548. 1923, No. 106 , § 1. G.L. § 5807. 1915, No. 164 , § 36.

Amendments--1973. Substituted "Superior" for "county" in the catchline and in the first sentence.

Amendments--1971 (Adj. Sess.). Amended section generally.

Amendments--1963. Substituted "thirty" for "fifteen" preceding "days" in the first sentence.

Cross References

Cross references. Costs, see § 678 of this title.

ANNOTATIONS

Analysis

1. Construction .

Thirty-day time period for filing notice of workers' compensation appeal, to either Supreme Court or Superior Court, began running when Commissioner mailed decision to claimant, rather than when Commissioner signed decision. Peabody v. Home Insurance Co., 170 Vt. 635, 751 A.2d 783 (mem.) (2000).

2. Review of facts.

Appeal from findings by Commissioner of Industrial Relations, based upon weight of evidence, must be pursuant to this section, since an award of Commissioner can be rejected by Supreme Court only if its findings and inferences have no support in the evidence. Kenney v. Rockingham School District, 123 Vt. 344, 190 A.2d 702 (1963).

If party desires retrial on facts, his appeal should be taken to county court. Kelley's Dependents v. Hoosac Lumber Co., 95 Vt. 50, 113 A. 818 (1921).

3. Exclusiveness of appeal procedure.

Because the workers' compensation claimant appealed the Commissioner of Labor's decision denying her claim for temporary total disability benefits and vocational rehabilitation services to the Chittenden Superior Court pursuant to the statute governing appeals to the Superior Court, she was precluded from appealing directly to the Vermont Supreme Court under the statute governing appeals to the Supreme Court, and was now only entitled to review in the Supreme Court by appealing the Superior Court's decision. Zebic v. Rhino Foods, - Vt. - , - A.3d - (May 21, 2021).

Because the rights to appeal workers' compensation decisions are circumscribed by statute, the Vermont Supreme Court does not have jurisdiction under the statute governing appeals to the Supreme Court when a party appeals to the Superior Court under the statute governing appeals to the Superior Court. Zebic v. Rhino Foods, - Vt. - , - A.3d - (May 21, 2021).

The language of 21 V.S.A. § 672 makes clear that the avenues available to a claimant to present a question of law, certified by the Commissioner, to a court for review are mutually exclusive - an appeal made to the Superior Court as provided in this section and 21 V.S.A. § 671 precludes appeal directly from the Commissioner to the Supreme Court as provided in 21 V.S.A. § 672. Roethke v. Jake's Original Bar & Grill, 172 Vt. 555, 772 A.2d 492 (2000).

4. Trial de novo.

Given the intertwining of fact and law in the certified question, which was whether the workers' compensation claimant was entitled to additional medical benefits referable to his 2002 injury, whether the claimant was entitled to additional permanent partial disability benefits as a consequence of the 2002 injury, and if so, based on what impairment rating, it was appropriate for the trial court to review the Commissioner's decision in a de novo retrial. Marshall v. State, 199 Vt. 295, 124 A.3d 435 (2015).

Cited. Dependents of Vlahos v. Rutland Restaurant, 104 Vt. 188, 157 A. 832 (1932); Jewell v. Olson Construction Co., 122 Vt. 434, 175 A.2d 509 (1961); Rae v. Green Mountain Boys Camp, 122 Vt. 437, 175 A.2d 800 (1961); Marsigli's Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 197 A.2d 799 (1964); Department of Taxes v. Tri-State Industrial Laundries, Inc., 138 Vt. 292, 415 A.2d 216 (1980); Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 421 A.2d 1291 (1980); Howard v. Office of Secretary of State, 140 Vt. 139, 435 A.2d 962 (1981); Falconer v. Cameron, 151 Vt. 530, 561 A.2d 1357 (1989); Jackson v. True Temper Corp., 151 Vt. 592, 563 A.2d 621 (1989); Lorrain v. Lorrain Carpets, 167 Vt. 574, 705 A.2d 536 (mem.) (1997).

§ 671. Jurisdiction; findings for new award.

The jurisdiction of such court shall be limited to a review of questions of fact or questions of fact and law certified to it by the Commissioner and upon completion of the case in Superior Court, either after trial or upon remand from the Supreme Court, the clerk shall certify the findings of the court to the Commissioner who shall thereupon make a new order in accordance therewith and shall forthwith send to each of the parties a copy of such order. Such new order shall have all the force and effect of an award made pursuant to the provisions of sections 663 and 664 of this title and shall supersede the award previously made by the Commissioner.

Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2017, No. 74 , § 42.

History

Source. V.S. 1947, § 8125. P.L. § 6549. 1923, No. 106 , § 1. G.L. § 5807. 1915, No. 164 , § 36.

Reference in text. Section 665 of this title, referred to in the second sentence, was repealed by 1985, No. 194 (Adj. Sess.), § 6. For present provision, see § 675(a) of this title.

Amendments--2017. In the second sentence, substituted "663 and 664" for "663, 664 and 665" following "provisions of sections", and substituted "the" for "such" preceding "Commissioner".

Amendments--1973 (Adj. Sess.). Substituted "superior" for "county" following "completion of the case in" in the first sentence.

Cross References

Cross references. Revision of decree to conform to modification of award by commissioner, see § 676 of this title.

ANNOTATIONS

Analysis

1. Scope of review.

Review contemplated by this section is retrial de novo of questions previous decision of which was unsatisfactory to one of parties, since this section contains no provision for bringing before court evidence previously adduced before Commissioner. Pitts v. Howe Scale Co., 110 Vt. 27, 1 A.2d 695 (1938).

Court has authority and duty to disregard questions which are not within statutory authority of Commissioner to certify, either because they are pure questions of law or for other reasons. Pitts v. Howe Scale Co., 110 Vt. 27, 1 A.2d 695 (1938).

2. Questions for jury.

On appeal, questions certified by Commissioner need not be submitted to jury in exact language used by him, but language to be used in instructing jury, provided subject matter is fully and correctly covered, is within control of trial court. Pitts v. Howe Scale Co., 110 Vt. 27, 1 A.2d 695 (1938); Sivret v. Knight, 118 Vt. 343, 109 A.2d 495 (1954).

3. Questions of law.

In a workers' compensation case, the Superior Court's order granting summary judgment for insurance companies on jurisdictional grounds was appropriate because both certified questions, which involved whether a court had subject matter jurisdiction and the question of the applicability of a statute of repose to a set of undisputed facts, presented pure questions of law. Stoll v. Burlington Elec. Dep't, 186 Vt. 127, 977 A.2d 1282 (2009).

Applicability of collateral estoppel to a given set of facts was a purely legal question, and therefore Superior Court lacked jurisdiction under this section to hear appeal from decision of Commissioner of Labor and Industry. Lorrain v. Lorrain Carpets, 167 Vt. 574, 705 A.2d 536 (mem.) (1997).

This section does not authorize certification of questions of law but only questions of fact or mixed questions of fact and law. Pitts v. Howe Scale Co., 110 Vt. 27, 1 A.2d 695 (1938).

4. Form of certification.

Trial court was not required to speculate on meaning and scope of questions certified by Commissioner when such questions were so vague that their meaning and scope could not be determined with certainty, but would order certified questions returned to commissioner to be so amended that questions of fact to be retried might be made definite and certain. Pitts v. Howe Scale Co., 110 Vt. 27, 1 A.2d 695 (1938).

Appellees' contention that no questions were certified by Commissioner because matters attempted to be certified were not in interrogative form, was without merit, though certifying in such form would be better practice and would tend to obviate doubt as to exact issues intended to be raised. Pitts v. Howe Scale Co., 110 Vt. 27, 1 A.2d 695 (1938).

5. Exclusiveness of appeal procedure.

The language of 21 V.S.A. § 672 makes clear that the avenues available to a claimant to present a question of law, certified by the Commissioner, to a court for review are mutually exclusive - an appeal made to the Superior Court as provided in this section and 21 V.S.A. § 670 precludes appeal directly from the Commissioner to the Supreme Court as provided in 21 V.S.A. § 672. Roethke v. Jake's Original Bar & Grill, 172 Vt. 555, 772 A.2d 492 (2000).

6. Requirement for certification.

Plaintiff insurance company could bring a declaratory judgment action to challenge the constitutionality of the standard that "the evidence does not reasonably support the denial" in 21 V.S.A. § 662 providing interim orders for payment of benefits, and such a challenge is not an appeal requiring certification of questions of fact and law by the Commissioner. Travelers Indemnity Co. v. Wallis, 176 Vt. 167, 845 A.2d 316 (2003).

7. Attorney fees.

The Commissioner of Labor is not prohibited by 21 V.S.A. § 678(a) from awarding attorney's fees in cases where the claimant has lost before the Commissioner but prevailed on appeal; rather, as shown in this section, the Commissioner is required to treat the claimant's success at trial or on appeal as success before the Commissioner. Sargent v. Town of Randolph Fire Department, 182 Vt. 546, 928 A.2d 525 (mem.) (June 14, 2007).

8. Subject matter jurisdiction.

Adjudicative body always has the power to determine whether it has subject matter jurisdiction over the dispute before it. It was therefore proper in a workers' compensation case for the Superior Court to address the threshold question of subject matter jurisdiction even though the question had been erroneously certified to it by the Commissioner of Labor. Stoll v. Burlington Elec. Dep't, 186 Vt. 127, 977 A.2d 1282 (2009).

When a Superior Court is faced with an ambiguous certified question, it can, in its discretion, return the question to the Commissioner of Labor to be clarified. Nothing in this holding suggests that the Superior Court must - or even that it may - recast a question that is unambiguously purely legal as a question of fact or a mixed question in order to create jurisdiction. Stoll v. Burlington Elec. Dep't, 186 Vt. 127, 977 A.2d 1282 (2009).

9. Rules of court.

In evaluating a workers' compensation case, the trial court did not exceed its jurisdiction by granting summary judgment to the insurer; it was obligated to apply the rules of evidence and to determine if the expert testimony proffered by the claimant was relevant and admissible. The trial court was similarly obligated to apply the rules of civil procedure, including the summary judgment rule. Estate of George v. Vermont League of Cities & Towns, 187 Vt. 229, 993 A.2d 367 (2010).

Cited. Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 421 A.2d 1291 (1980); Howard v. Office of Secretary of State, 140 Vt. 139, 435 A.2d 962 (1981); Demag v. American Insurance Cos., 146 Vt. 608, 508 A.2d 697 (1986); Falconer v. Cameron, 151 Vt. 530, 561 A.2d 1357 (1989); Jackson v. True Temper Corp., 151 Vt. 592, 563 A.2d 621 (1989).

§ 672. Appeals to the Supreme Court.

If an appeal is not taken under the provisions of section 670 of this title within the time limited therefor, either party may transfer such cause to the Supreme Court. The jurisdiction of the Court shall be limited to a review of questions of law certified to it by the Commissioner. On such appeal or on an appeal taken as provided in sections 670 and 671 of this title and coming to the Supreme Court on appeal from Superior Court, the Supreme Court may render final judgment and award execution, or may remand the cause to the Superior Court or to the Commissioner for further findings or for new order by him or her in accordance with the mandate of the Court. The Court shall, by general rules, prescribe the procedure to be followed in case of such appeals.

Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source. V.S. 1947, § 8126. 1947, No. 202 , § 8285. P.L. § 6550. 1923, No. 106 , § 2. G.L. § 5808. 1917, No. 171 , § 3. 1915, No. 164 , § 37.

Revision note. In the third sentence, substituted "appeal" for "exceptions" preceding "from superior court" to conform language to V.R.C.P. 46 and 4 V.R.A.P. 3(a) pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under 4 V.S.A. § 219.

Amendments--1973 (Adj. Sess.). Substituted "Superior" for "county" following "exceptions from" and "remand the cause to the" in the third sentence.

Cross References

Cross references. Costs, see § 678 of this title.

ANNOTATIONS

Analysis

1. Evidence necessary for review.

Where period of temporary total disability of claimant had ended before appeal from order of Commissioner was certified to Supreme Court, date when such disability ended should have been determined, and failure so to do justified dismissal of proceedings in Supreme Court. San Martin v. E. N. Rock & Sons Co., 106 Vt. 301, 172 A. 635 (1934).

Practice whereby question involving jurisdiction of Commissioner was certified by him to Supreme Court on appeal, but evidence relating thereto already in case was not furnished, question not being briefed by either party but left for determination in event case went back for further evidence, was disapproved. Larrabee v. Citizens Telephone Co., 106 Vt. 44, 169 A. 784 (1934).

2. Ripeness.

Supreme Court will not entertain appeals from order of Commissioner unless all questions which it is possible to determine below have been there determined. San Martin v. E. N. Rock & Sons Co., 106 Vt. 301, 172 A. 635 (1934).

3. Scope of review.

Although Commissioner refused to certify issue for appeal, Supreme Court had jurisdiction to determine whether notice of appeal was timely, despite plain language of this section. Peabody v. Home Insurance Co., 170 Vt. 635, 751 A.2d 783 (mem.) (2000).

The courts may not consider equities between a claimant employee and the insurance carrier of an employer. Quinn v. Pate, 124 Vt. 121, 197 A.2d 795 (1964).

Review of the facts found by the Commissioner is confined to the issue of law relating to the sufficiency of the evidence to support the factual findings. Peabody v. Jones & Lamson Machine Co., 122 Vt. 431, 176 A.2d 759 (1961); Moody v. Humphrey & Harding, Inc., 127 Vt. 52, 238 A.2d 646 (1968).

Supreme Court cannot supply the omission of an essential fact that is not fairly and reasonably inferable from the facts found. Norman v. American Woolen Co., 117 Vt. 28, 84 A.2d 125 (1951).

Under this section, the Supreme Court is limited to a review of such law questions as the Commissioner has certified. McKane v. Capital Hill Quarry Co., 100 Vt. 45, 134 A. 640 (1926); Morrisseau v. Legac, 123 Vt. 70, 181 A.2d 53 (1962); Goodwin v. Fairbanks, Morse & Co., 123 Vt. 161, 184 A.2d 220 (1962).

4. Sufficiency of evidence.

Supreme Court will test the sufficiency of the facts from a point of view favorable to the award. Wroten v. Lamphere, 147 Vt. 606, 523 A.2d 1236 (1987).

On appeal from a workmen's compensation award, the Supreme Court is required to test the sufficiency of the facts from a point of view favorable to the award, if this can reasonably be done. Marsigli's Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 197 A.2d 799 (1964); Moody v. Humphrey & Harding, Inc., 127 Vt. 52, 238 A.2d 646 (1968).

5. Findings.

Findings of the Commissioner are binding on the supreme court if supported by the evidence. Wroten v. Lamphere, 147 Vt. 606, 523 A.2d 1236 (1987).

The findings of the Commissioner are binding upon the court if legally supported by evidence. Lapan v. Berno's Inc., 137 Vt. 393, 406 A.2d 390 (1979); Angolano v. City of South Burlington, 142 Vt. 131, 453 A.2d 402 (1982); Norse v. Melsur Corp., 143 Vt. 241, 465 A.2d 275 (1983).

Finding of Commissioner that workmen's compensation claimant had sustained an injury in course of and arising out of his or her employment was binding on Supreme Court on review and sustained award of compensation where finding was legally supported by the evidence. Moody v. Humphrey & Harding, Inc., 127 Vt. 52, 238 A.2d 646 (1968).

Findings of the Commissioner are binding upon appeal if sufficiently established by the evidence, and the burden is on the claimant to establish facts essential to the rights asserted. Quinn v. Pate, 124 Vt. 121, 197 A.2d 795 (1964).

Findings of commissioner, and all reasonable inferences drawn therefrom, must stand if evidence fairly and reasonably tends to support them, and weight of evidence is not for consideration on appeal. Kenney v. Rockingham School District, 123 Vt. 344, 190 A.2d 702 (1963).

Resolution of factual issues in workmen's compensation proceedings are for Commissioner, and his findings are conclusive and binding on the Supreme Court in the presence of evidentiary support. Peabody v. Jones & Lamson Machine Co., 122 Vt. 431, 176 A.2d 759 (1961); Moody v. Humphrey & Harding, Inc., 127 Vt. 52, 238 A.2d 646 (1968).

Findings of the Commissioner can be rejected as a matter of law only if the evidence upon which he acted had no probative worth, or proportionally was so slight as to be irrational as a basis for a finding, or if it appears that improper considerations substantially influenced the results. Jewell v. Olson Construction Co., 122 Vt. 434, 175 A.2d 509 (1961).

Finding by Commissioner that injury resulted from accident arising out of and in the course of employment will stand if supported by evidence, even though it may appear that degenerative processes were present in injured leg. Gee v. City of Burlington, 120 Vt. 472, 144 A.2d 797 (1958).

Findings of the Commissioner, in cases within his jurisdiction, stand like those of a referee or master in that, if they are fairly and reasonably warranted by the evidence, they are conclusive and binding on appeal. Norman v. American Woolen Co., 117 Vt. 28, 84 A.2d 125 (1951); Morrisseau v. Legac, 123 Vt. 70, 181 A.2d 53 (1962); Goodwin v. Fairbanks, Morse & Co., 123 Vt. 161, 184 A.2d 220 (1962).

Where findings of Commissioner did not show to whom burial expenses were paid, but Commissioner's certificate as to questions of law to be reviewed showed such expenses were paid "to the persons entitled to compensation and not to the personal representative of the deceased employee," formal findings were taken as supplemented by whatever additional facts appeared in such certificate. Barber v. Estey Organ Co., 100 Vt. 72, 135 A. 1 (1926).

Findings of fact by Commissioner are conclusive on appeal, except as to whether there is sufficient evidence to support them. Kelley's Dependents v. Hoosac Lumber Co., 95 Vt. 50, 113 A. 818 (1921); Roller v. Warren, 98 Vt. 514, 129 A. 168 (1925); Norman v. American Woolen Co., 117 Vt. 28, 84 A.2d 125 (1951).

6. Jurisdiction of Commissioner.

Though findings of fact by Commissioner, if legally supported by evidence, were ordinarily binding on supreme court, where question of Commissioner's jurisdiction was involved, and certified copy of all evidence before him was made part of record on appeal, Supreme Court would examine evidence in determining question of jurisdiction. Chamberlain v. Central Vermont Railway, 100 Vt. 284, 137 A. 326 (1927).

7. Remand.

Supreme Court, on proper motion, remanded case for a new trial to the end that no injustice be done, although no error was found in the proceedings below. O'Boyle v. Parker-Young Co., 95 Vt. 58, 112 A. 385 (1921).

8. Time limits .

Thirty-day time period for filing notice of workers' compensation appeal, to either Supreme Court or Superior Court, began running when Commissioner mailed decision to claimant, rather than when Commissioner signed decision. Peabody v. Home Insurance Co., 170 Vt. 635, 751 A.2d 783 (mem.) (2000).

9. Exclusiveness of appeal procedure.

Because the workers' compensation claimant appealed the Commissioner of Labor's decision denying her claim for temporary total disability benefits and vocational rehabilitation services to the Chittenden Superior Court pursuant to the statute governing appeals to the Superior Court, she was precluded from appealing directly to the Vermont Supreme Court under the statute governing appeals to the Supreme Court, and was now only entitled to review in the Supreme Court by appealing the Superior Court's decision. Zebic v. Rhino Foods, - Vt. - , - A.3d - (May 21, 2021).

Because the rights to appeal workers' compensation decisions are circumscribed by statute, the Vermont Supreme Court does not have jurisdiction under the statute governing appeals to the Supreme Court when a party appeals to the Superior Court under the statute governing appeals to the Superior Court. Zebic v. Rhino Foods, - Vt. - , - A.3d - (May 21, 2021).

The language of this section makes clear that the avenues available to a claimant to present a question of law, certified by the Commissioner, to a court for review are mutually exclusive - an appeal made to the Superior Court as provided in 21 V.S.A. §§ 670 and 671 precludes appeal directly from the Commissioner to the Supreme Court as provided in this section. Roethke v. Jake's Original Bar & Grill, 172 Vt. 555, 772 A.2d 492 (2000).

Cited. Gillespie v. Vermont Hosiery & Machinery Co., 109 Vt. 409, 199 A. 564 (1938); Rae v. Green Mountain Boys Camp, 122 Vt. 437, 175 A.2d 800 (1961); Orvis v. Hutchins, 123 Vt. 18, 179 A.2d 470 (1962); Masterson v. Rutland Hospital, 129 Vt. 91, 271 A.2d 848 (1970), overruled on other grounds, Campbell v. Heinrich Savelberg, Inc.(1980) 139 Vt. 31, 421 A.2d 1291; Town of Barnet v. Central Vermont Public Service Corp., 131 Vt. 578, 313 A.2d 392 (1973); Hislop v. Department of Social Welfare, 136 Vt. 205, 388 A.2d 428 (1978); Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 421 A.2d 1291 (1980); Montgomery v. Brinver Corp., 142 Vt. 461, 457 A.2d 644 (1983); In re Fletcher, 144 Vt. 419, 479 A.2d 134 (1984); Demag v. American Insurance Cos., 146 Vt. 608, 508 A.2d 697 (1986); Fleury v. Kessel/Duff Construction Co., 149 Vt. 360, 543 A.2d 703 (1988); Jackson v. True Temper Corp., 156 Vt. 247, 590 A.2d 891 (1991); Fleury v. Kessel/Duff Construction, 156 Vt. 406, 592 A.2d 904 (1991); Clodgo v. Rentavision, Inc., 166 Vt. 548, 701 A.2d 1044 (1997).

§ 673. Appeal in case of fraud, accident, or mistake.

On petition and proof and in its discretion, the Supreme or Superior Court may grant leave to enter an appeal from an order of the Commissioner of Labor in cases where the petitioner has been prevented by fraud, accident or mistake from taking or entering an appeal within the time allowed by law. On granting the same, the court shall order such petitioner to give sufficient security to prosecute such appeal to effect and pay such costs as are awarded against him or her.

Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Source. V.S. 1947, § 8127. 1935, No. 163 , § 1.

Amendments--2005 (Adj. Sess.) Substituted "Commissioner of Labor" for "Commissioner of Labor and Industry" in the first sentence.

Amendments--1973. Substituted "Superior" for "county" preceding "Court" in the first sentence.

Cross References

Cross references. Time for filing notice of appeal, see 12 V.S.A. § 2383 and V.R.A.P. 4(a).

ANNOTATIONS

Cited. Lorrain v. Lorrain Carpets, 167 Vt. 574, 705 A.2d 536 (mem.) (1997).

§ 674. Service of petition.

Such petition shall not be sustained unless served on the adverse party within 21 days from the date thereof and within two years after the last date upon which such appeal might have been entered in court.

History

Source. V.S. 1947, § 8128. 1945, No. 202 , § 8287. 1935, No. 163 , § 2.

§ 675. Enforcement of award.

  1. If an award is made under the provisions of this chapter, including interim orders, issued pursuant to sections 643a and 662 of this title, or an agreement is approved by the Commissioner, and the employer or insurance carrier fails to comply with the award or agreement, the employee, subject to the stay provisions of subsection (b) of this section, may proceed to collect all or any part of past due installments in any court of law having jurisdiction of the amount involved. If the employee prevails, interest, reasonable attorney's fees, and costs shall be allowed.
  2. Any award or order of the Commissioner shall be of full effect from issuance unless stayed by the Commissioner, any appeal notwithstanding.  Any request for a stay shall be filed with the Commissioner at the time of filing a notice of appeal. The Commissioner, after allowing the prevailing party 10 days within which to be heard in writing on the request, shall respond within 15 days to the request for stay.  The response of the Commissioner shall detail his or her reasons for granting, denying, or modifying the request and shall be a part of the record on appeal.  No stay shall exist unless granted pursuant to this subsection.
  3. An employer who fails to make payment due to an employee under this chapter pursuant to an executed agreement under sections 642, 644, 646, or 648 of this title or pursuant to an interim order of the Commissioner within 15 days after the payment is due shall also pay the employee interest on the unpaid compensation at the statutory rate.

    Amended 1985, No. 194 (Adj. Sess.), § 7; 1997, No. 19 , § 5.

History

Source. V.S. 1947, § 8129. P.L. § 6551. G.L. § 5809. 1917, No. 171 , § 3. 1915, No. 164 , § 38.

Revision note. In subsec. (a), substituted "sections 643a and 662 of this title" for "sections 643a and 662" to conform reference to V.S.A. style.

Amendments--1997 Subsec. (a): Substituted "of this section" for "herein" following "subsection (b)" in the first sentence and inserted "interest, reasonable attorney fees and" preceding "costs" in the second sentence.

Subsec. (c): Added.

Amendments--1985 (Adj. Sess.). Section amended generally.

ANNOTATIONS

1. Attorney's fees and costs.

Vermont Supreme Court extends its holding in Merriam and explicitly preserves the catalyst theory as a possible route to attorneys' fees in workers' compensation cases. This accords with the Court's recognition that the workers' compensation statute is remedial and is to be construed broadly to further its purpose of making employees injured on the job whole. Bonanno v. Verizon Bus. Network Sys. & Sedgwick Claims Mgmt. Sys., 196 Vt. 62, 93 A.3d 146 (2014).

Under the catalyst theory, plaintiff prevailed on the issue of a medical bill and was entitled to attorneys' fees and costs. Defendants paid plaintiff's medical bill as a direct result of plaintiff's lawsuit to enforce the terms of a workers' compensation settlement agreement, and his claim was not frivolous, unreasonable, or groundless as a matter of law. Bonanno v. Verizon Bus. Network Sys. & Sedgwick Claims Mgmt. Sys., 196 Vt. 62, 93 A.3d 146 (2014).

In plaintiff's action to enforce a workers' compensation settlement, the trial court's grant to plaintiff of $1,000 in attorneys' fees and $250 in costs for prevailing on the issue of a medical bill was not unreasonable, given the peripheral nature of the medical bill issue and plaintiff's unnecessary delay in providing discovery. Bonanno v. Verizon Bus. Network Sys. & Sedgwick Claims Mgmt. Sys., 196 Vt. 62, 93 A.3d 146 (2014).

§ 676. Revision of decrees.

Upon the filing with it of a certified copy of a decision of the Commissioner ending, diminishing, or increasing compensation previously awarded, a Superior Court which has rendered judgment as provided by this chapter shall revoke or modify its prior judgment so that it will conform to such decision.

Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source. V.S. 1947, § 8130. P.L. § 6552. G.L. § 5810. 1917, No. 171 , § 3. 1915, No. 164 , § 41.

Amendments--1973 (Adj. Sess.). Substituted "Superior" for "county" preceding "Court".

Cross References

Cross references. Modification of awards, see § 668 of this title.

§ 677. New hearings; when granted; procedure.

The Commissioner may grant a new hearing in a cause determined by him or her on the ground of newly discovered evidence when a petition, setting forth the substance of such evidence, verified by the oath of the petitioner, is presented. His or her decision in granting or denying such hearing shall be final and conclusive. If a party petitions the Commissioner for a new hearing, he or she shall give the adverse party notice of such petition by a citation signed by the Commissioner served like a summons at least 12 days before the date of such hearing. A new hearing shall not be granted on a petition unless the citation to the adverse party is served within six months after the date of the order of the Commissioner.

History

Source. V.S. 1947, § 8131. P.L. § 6553. G.L. § 5811. 1917, No. 173 , § 14.

Revision note. In the third sentence, deleted "writ of" preceding "summons" to conform language to V.R.C.P. 4, pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under 4 V.S.A. § 219.

§ 678. Costs; attorney's fees.

  1. Necessary costs of proceedings under this chapter, including deposition expenses, subpoena fees, and expert witness fees, shall be assessed by the Commissioner against the employer or its workers' compensation carrier when the claimant prevails. The Commissioner may allow the claimant to recover reasonable attorney's fees when the claimant prevails. Costs shall not be taxed or allowed either party except as provided in this section.
  2. In appeals to the Superior or Supreme Court, if the claimant prevails, he or she shall be entitled to reasonable attorney's fees as approved by the court, necessary costs, including deposition expenses, subpoena fees, and expert witness fees, and interest at the rate of 12 percent per annum on that portion of any award the payment of which is contested. Interest shall be computed from the date of the award of the Commissioner.
  3. By January 1, 1999, and at least every five years thereafter, the Commissioner shall amend existing rules regarding reasonable attorney's fees awarded under subsection (a) of this section. In amending these rules, the Commissioner shall consider accessibility to legal services, appropriate inflation factors, and any other related factors consistent with the purposes of this chapter. In the event the Commissioner proposes no change in the rules in any five-year period, the Commissioner shall provide a written report to the Legislative Committee on Administrative Rules of the General Assembly explaining the reasons for not changing the rules.
  4. In cases for which a formal hearing is requested and the case is resolved prior to formal hearing, the Commissioner may award reasonable attorney's fees if the claimant retained an attorney in response to an actual or effective denial of a claim and thereafter payments were made to the claimant as a result of the attorney's efforts.
  5. An attorney representing a claimant shall submit a claim for attorney's fees and costs within 30 days following a decision in which the claimant prevails.

    Amended 1961, No. 90 ; 1969, No. 237 (Adj. Sess.), eff. May 1, 1970; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1981, No. 165 (Adj. Sess.), § 1; 1981, No. 204 (Adj. Sess.), § 10; 1997, No. 140 (Adj. Sess.), § 1; 2007, No. 208 (Adj. Sess.), § 16, eff. June 11, 2008; 2013, No. 199 (Adj. Sess.), § 66, eff. June 24, 2014.

History

Source. V.S. 1947, § 8132. P.L. § 6554. 1933, No. 157 , § 6228. G.L. §§ 5812, 5813. 1917, No. 171 , § 3. 1917, No. 173 , § 13. 1915, No. 164 , § 39.

Amendments--2013 (Adj. Sess.). Section heading: Substituted "attorney's" for "attorney" preceding "fees".

Subsec. (a): Inserted ", including deposition expenses, subpoena fees, and expert witness fees," following "proceedings under this chapter", and substituted "attorney's fees" for "attorney fees" following "claimant to recover reasonable".

Subsec. (b): Substituted "attorney's fees" for "attorney fees" following "shall be entitled to reasonable" and "Court, necessary costs, including deposition expenses, subpoena fees, and expert witness fees" for "court" following "as approved by the".

Amendments--2007 (Adj. Sess.). Added "attorney fees" in the section heading; in subsec. (b), substituted "courts, if the claimant prevails, he or she shall" for "courts, the claimant, if he or she prevails, shall" and "attorney fees" for "attorney's fees" in the first sentence, and added subsecs. (d) and (e).

Amendments--1997 (Adj. Sess.). In the first sentence of subsec. (a), substituted "workers' " for "workmen's" and "the claimant" for "he"; inserted "or she" after "he" in subsec. (b); and added subsec. (c).

Amendments--1981 (Adj. Sess.). Catchline: Act No. 204 deleted ";fees and interest; assessed against whom".

Subsec. (a): Act No. 204 rewrote first sentence.

Act No. 165 substituted "workers"' for "workmen's" preceding "compensation" in the first sentence.

Subsec. (b): Act No. 204 substituted "12" for "6" preceding "percent" in the first sentence.

Amendments--1973 (Adj. Sess.). Subsec. (b): Substituted "Superior" for "county" preceding "or Supreme" in the first sentence.

Amendments--1969 (Adj. Sess.). Deleted "and" preceding "fees" in the catchline, inserted "and interest" thereafter, designated existing provisions of section as subsec. (a), deleted "or court" following "Commissioner" in the second sentence of that subsection and added subsec. (b).

Amendments--1961. Inserted the second sentence and "and fees" following "Costs" in the catchline.

ANNOTATIONS

Analysis

1. Constitutionality.

Equal protection is not violated under either federal or state constitutions by provision authorizing Commissioner of Labor and Industry to award reasonable attorney's fees to prevailing claimants in workers' compensation cases. Hodgeman v. Jard Co., 157 Vt. 461, 599 A.2d 1371 (1991).

Subsection (b) of this section does not deny equal protection of the laws; it is reasonable for the legislature to have determined that an employer has greater capacity to assume legal expense on appeal and, thus, that it is fair for such an employer to pay the claimant's attorney fees even though the employer could not recover such fees if it prevailed. Fleury v. Kessel/Duff Construction Co., 149 Vt. 360, 543 A.2d 703 (1988).

Subsection (b) of this section, authorizing an award of attorney's fees to a workers' compensation claimant who prevails on appeal, does not deny an employer access to justice or force it to purchase justice in violation of Vt. Const. Ch. I, Art. 4 and Ch. II, § 28. Fleury v. Kessel/Duff Construction Co., 149 Vt. 360, 543 A.2d 703 (1988).

2. Construction.

Where a party is entitled to attorney's fees by statute, it is not within the court's discretion whether to award such fees, but rather its task is to determine what constitutes reasonable fees in each instance. Perez v. Travelers Insurance, 181 Vt. 45, 915 A.2d 750 (November 17, 2006).

Statute governing the entitlement of workers compensation claimants to attorney fees in appeals does not entitle a claimant to recover costs in superior court. Perez v. Travelers Insurance, 181 Vt. 45, 915 A.2d 750 (November 17, 2006).

Under provision authorizing an award of reasonable attorney's fees to prevailing claimants in workers' compensation cases, where plaintiff was awarded additional compensation for her wrist injury, compensation for her spine injury, and attorney's fees, but was denied relief for her jaw disorder, plaintiff "prevailed" as the word is used in this section. Hodgeman v. Jard Co., 157 Vt. 461, 599 A.2d 1371 (1991).

Subsections (a) and (b) of this section must be read in pari materia. Fleury v. Kessel/Duff Construction Co., 149 Vt. 360, 543 A.2d 703 (1988).

Subsection (b) of this section does not authorize the Supreme Court to award attorney's fees for representation before the Commissioner of Labor and Industry where the claimant has prevailed before the Commissioner. Fleury v. Kessel/Duff Construction Co., 149 Vt. 360, 543 A.2d 703 (1988).

3. Purpose.

Defendant failed in its argument that a workers' compensation claimant's award should be limited to the terms of the contingency fee agreement she entered into with her attorney. Applying the "lodestar" method of calculation represents the reasonable worth of the services rendered in vindication of claimant's position, and is therefore appropriate given the statute's goal of alleviating the cost of litigation for prevailing claimants. Perez v. Travelers Insurance, 181 Vt. 45, 915 A.2d 750 (November 17, 2006).

Legislature could reasonably have determined that the allocation of fees set out by this section furthers the purpose of workers' compensation because employers and their insurance carriers are better able to bear the expense of hearings than employees. Hodgeman v. Jard Co., 157 Vt. 461, 599 A.2d 1371 (1991).

The main purpose of this section is to discourage unreasonable delay and unnecessary expense in the enforcement of a claim under this chapter. Kelley v. Hoosac Lumber Co., 96 Vt. 153, 118 A. 520 (1922), overruled on other grounds; Grenier v. Alta Crest Farms, Inc., 115 Vt. 324, 58 A.2d 884 (1948); Morrisseau v. Legac, 123 Vt. 70, 181 A.2d 53 (1962).

4. Attorney fees.

Pursuant to 21 V.S.A. § 678(b) and Vt. R. App. P. 39(a), a workers' compensation claimant was entitled to costs and attorney's fees that the claimant incurred in an appeal to the State Supreme Court because the claimant was the prevailing party where the case was reversed and remanded with directions to make necessary findings and conclusions and to address the salient legal issue. McNally v. Department of PATH, 190 Vt. 590, 31 A.3d 333 (mem.) (2011).

The plain language of 21 V.S.A. § 678 indicates that the Legislature intended to allow the award of attorney's fees to claimants who prevail in appellate proceedings, even in the absence of a final judgment on the underlying claim. McNally v. Department of PATH, 190 Vt. 590, 31 A.3d 333 (mem.) (2011).

Employer could offset the sick wages paid to a workers' compensation claimant during a period of temporary total disability against the workers' compensation disability benefits it was ordered to pay for the same period. The claimant received all statutory disability benefits to which he was entitled; the ban against assignment was inapposite; and the employer's offset-credit policy did not compromise in any way the claimant's opportunity to seek attorney's fee reimbursement. Yustin v. Dep't of Pub. Safety, 189 Vt. 618, 19 A.3d 611 (2011).

Subsection (a) of this section does not prohibit the Commissioner of Labor from awarding attorney's fees in cases where the claimant has lost before the Commissioner but prevailed on appeal; rather, as shown in 21 V.S.A. § 671, the Commissioner is required to treat the claimant's success at trial or on appeal as success before the Commissioner. Sargent v. Town of Randolph Fire Department, 182 Vt. 546, 928 A.2d 525 (mem.) (June 14, 2007).

Workers' compensation cases require specialized skills related to presentation of medical claims, which are uniquely dependent on technical evidence. In light of this, it is appropriate to consider prevailing market rates for trial litigation-in particular litigation where the plaintiff's medical condition is the crux of liability-as a starting point for the fee award. In presenting affidavits from attorneys with similar levels of experience and who practiced in personal injury law, claimant addressed the relevant standard. Perez v. Travelers Insurance, 181 Vt. 45, 915 A.2d 750 (November 17, 2006).

The attorney's fee provision in a worker's compensation case shifts the burden of fees to the employer to discourage unreasonable delay and unnecessary expense in the prosecution or defense of claims. In light of the purposes of the fee-shifting provision, the Superior Court should have adjusted the amount that claimant requested to reflect a reasonable award under the circumstances rather than denying fees outright. Perez v. Travelers Insurance, 181 Vt. 45, 915 A.2d 750 (November 17, 2006).

Where claimant submitted an itemized billing statement and affidavits from other attorneys providing a range of comparable billing rates, there was adequate evidence from which the Superior Court could have fashioned an award. Perez v. Travelers Insurance, 181 Vt. 45, 915 A.2d 750 (November 17, 2006).

In a workers' compensation case, the Superior Court at most should have reduced a fee award only by the specific number of hours listed for entries that the court concluded were not reasonably related to the litigation or redundant. Perez v. Travelers Insurance, 181 Vt. 45, 915 A.2d 750 (November 17, 2006).

In a workers' compensation case, the Superior Court erred in adopting defendant's argument that claimant was required to present supporting affidavits from practitioners specializing in workers' compensation cases. Perez v. Travelers Insurance, 181 Vt. 45, 915 A.2d 750 (November 17, 2006).

In a workers' compensation appeal to the Supreme Court, a claimant is entitled to reasonable attorney's fees if he prevails. Coburn v. Frank Dodge & Sons, 165 Vt. 529, 687 A.2d 465 (1996).

Workers' Compensation Rule 10, which caps attorney fees at $35 per hour where a plaintiff is successful in a claim against a defendant, is authorized by 21 V.S.A. § 602, which authorizes the Commissioner of Labor and Industry to issue rules, and is consistent with 21 V.S.A. § 678, which allows recovery of reasonable attorney fees when a plaintiff prevails. Miller v. IBM, 163 Vt. 396, 659 A.2d 1126 (1995).

21 V.S.A. § 678(a) does not impose any limit on the fees an attorney may charge the client; instead, it and Workers' Compensation Rule 10 impose a limit on the amount of the claimant's attorney's fees which may be shifted to the employer. Miller v. IBM, 163 Vt. 396, 659 A.2d 1126 (1995).

Subsection (b) of 21 V.S.A. § 678 governs an award for attorney's work done in the Superior and Supreme Courts and authorizes the Superior Court to determine a reasonable rate without regard to the Commissioner of Labor and Industry's limit. Miller v. IBM, 163 Vt. 396, 659 A.2d 1126 (1995).

Although 21 V.S.A. § 678(a) directs the Commissioner of Labor and Industry to award costs when the claimant prevails, it provides only an authorization that the Commissioner may award attorney fees so that the Commissioner has discretion under the section. Miller v. IBM, 163 Vt. 396, 659 A.2d 1126 (1995).

Decision of the trial court awarding attorney's fees of $75 per hour for representation both before the Commissioner of Labor and Industry and before appellate courts was remanded to permit the Commissioner to determine appropriate attorney's fee for work done at the administrative level. Jackson v. True Temper Corp., 156 Vt. 247, 590 A.2d 891 (1991).

Regulation promulgated by Commissioner of Labor and Industry limiting attorney's fees to a maximum of $35 per hour for matters before that agency did not apply to attorney's fees for representation of client before Superior Court or Supreme Court. Jackson v. True Temper Corp., 156 Vt. 247, 590 A.2d 891 (1991).

Notwithstanding that plaintiff had received maximum allowed attorney fees as set by Department of Labor and Industry's regulation in proceeding to adjudicate workers' compensation claim, the Supreme Court had authority under this section to award attorney fees and expenses of appeal. Coleman v. United Parcel Service, 155 Vt. 646, 582 A.2d 151 (mem.) (1990).

5. Discretion of Commissioner.

The Commissioner of Labor could not be compelled to award attorney's fees because subsection (a) of this section makes clear that such an award is within the Commissioner's discretion. Sargent v. Town of Randolph Fire Department, 182 Vt. 546, 928 A.2d 525 (mem.) (June 14, 2007).

Commissioner of Labor and Industry has considerable discretion in awarding fees to prevailing claimants in workers' compensation cases, and is not constrained by the need for a showing that employer's defense caused unreasonable delay and unnecessary expense. Hodgeman v. Jard Co., 157 Vt. 461, 599 A.2d 1371 (1991).

Determination of reasonable attorney fees in workers' compensation cases lies within the discretion of the Commissioner of Labor and Industry, but counsel has the burden of providing evidence to justify an award. Hodgeman v. Jard Co., 157 Vt. 461, 599 A.2d 1371 (1991).

Where Commissioner of Labor and Industry made an award of attorney's fees in workers' compensation case, with no evidentiary basis for the award of fees, and the award was calculated on a percentage basis, but was not to exceed $3,000, the award was within the Commissioner's sound discretion. Hodgeman v. Jard Co., 157 Vt. 461, 599 A.2d 1371 (1991).

Cited. Marsigli's Estate v. Granite City Auto Sales, Inc., 124 Vt. 467, 207 A.2d 158 (1965); Merrill v. University of Vermont, 133 Vt. 101, 329 A.2d 635 (1974); Merrill v. Town of Ludlow, 147 Vt. 186, 514 A.2d 1050 (1986); Wroten v. Lamphere, 147 Vt. 606, 523 A.2d 1236 (1987); Fleury v. Kessel/Duff Construction, 156 Vt. 406, 592 A.2d 904 (1991); Wood v. Fletcher Allen Health Care, 169 Vt. 419, 739 A.2d 1201 (1999); Peabody v. Home Insurance Co., 170 Vt. 635, 751 A.2d 783 (mem.) (2000).

§ 679. Fees of sheriffs and witnesses.

Sheriffs and witnesses shall receive the same fees for the service of process and attendance before the Commissioner as are paid sheriffs and witnesses in Superior Court.

Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source. V.S. 1947, § 8133. P.L. § 6555. 1933, No. 157 , § 6229. G.L. § 5813. 1917, No. 173 , § 13.

Amendments--1973 (Adj. Sess.). Substituted "Superior" for "county" preceding "Court".

Cross References

Cross references. Sheriffs' fees for service of process, see 32 V.S.A. § 1591.

Witness fees, see 32 V.S.A. § 1551.

ANNOTATIONS

Cited. Kelley v. Hoosac Lumber Co., 96 Vt. 153, 118 A. 520 (1922); Morrisseau v. Legac, 123 Vt. 70, 181 A.2d 53 (1962).

§ 680. Preferences.

All rights of compensation granted by the provisions of this chapter shall have the same preference or priority against the assets of the employer or the property of any persons described in subsection 687(b) of this title as is allowed by 9 V.S.A. § 1972 .

Amended 1997, No. 19 , § 6.

History

Source. V.S. 1947, § 8134. P.L. § 6556. G.L. § 5814. 1915, No. 164 , § 43.

Amendments--1997 Inserted "or the property of any persons described in subsection 687(b) of this title" following "employer".

§ 681. Claims not assignable.

Claims for compensation under the provisions of this chapter shall not be assignable. Compensation and claims therefor shall be exempt from all claims of creditors, except as provided in section 682 of this title.

History

Source. V.S. 1947, § 8135. P.L. § 6557. G.L. § 5815. 1917, No. 171 , § 3. 1917, No. 254 , § 5678. 1915, No. 164 , § 44.

ANNOTATIONS

Analysis

1. Survival of claims.

Even though this section specifically makes workers' compensation claims unassignable, assignability does not determine survivability. Dodge v. Precision Construction Products, Inc., 175 Vt. 101, 820 A.2d 207 (2003).

2. Applicability.

Statute making workers' compensation claims not assignable excludes "compensation or claims therefor" from "all claims of creditors"; it makes no mention of tracing assets purchased with workers' compensation settlement funds and no such language can be reasonably implied. The Legislature plainly intended to protect an injured worker's income stream and his or her right to secure such income stream from creditors, not to protect that person's assets. Geraw v. Geraw, - Vt. - , - A.3d - (June 11, 2021).

Where the Legislature has intended to exempt property traceable to the receipt of certain benefits, it has said so explicitly. By omitting such language from the statute stating that workers' compensation are not assignable, the Legislature obviously left the question of a creditor's right to various assets to the specific provisions set forth in the statute exempting certain articles from attachment and execution. Geraw v. Geraw, - Vt. - , - A.3d - (June 11, 2021).

Employer could offset the sick wages paid to a workers' compensation claimant during a period of temporary total disability against the workers' compensation disability benefits it was ordered to pay for the same period. The claimant received all statutory disability benefits to which he was entitled; the ban against assignment was inapposite; and the employer's offset-credit policy did not compromise in any way the claimant's opportunity to seek attorney's fee reimbursement. Yustin v. Dep't of Pub. Safety, 189 Vt. 618, 19 A.3d 611 (2011).

§ 682. Liens against compensation.

Claims of physicians and hospitals for services rendered under the provisions of this chapter and claims of attorneys for services rendered an employee in prosecuting a claim under the provisions of this chapter shall be approved by the Commissioner. When so approved they may be enforced against compensation awards in such manner as the Commissioner may direct.

History

Source. V.S. 1947, § 8136. P.L. § 6558. 1933, No. 157 , § 6232. G.L. § 5815. 1917, No. 171 , § 3. 1917, No. 254 , § 5678. 1915, No. 164 , § 44.

ANNOTATIONS

Cited. Vincent v. Vermont State Retirement Board, 148 Vt. 531, 536 A.2d 925 (1987).

§§ 683-686. Repealed. 1999, No. 41, § 8(a)(2).

History

Former §§ 683-686. Former § 683, relating to the second injury fund, was derived from V.S. 1947, § 8137. 1947, No. 159 , § 1.

Former § 684, relating to a report on the status of the fund, was derived from V.S. 1947, § 8138. 1947, No. 159 , § 2; and amended by 1977, No. 182 (Adj. Sess.), § 16, eff. May 3, 1978; 1983, No. 195 (Adj. Sess.), § 5(b).

Former § 685, relating to suspension of payment, was derived from V.S. 1947, § 8139. 1947, No. 159 , § 3.

Former § 686, relating to hearings, was derived from V.S. 1947, § 8140. 1947, No. 159 , § 4.

§ 687. Security for compensation.

  1. Employers, not including State, county, or municipal bodies, shall secure compensation for their employees in one or more of the following ways:
    1. By insuring and keeping insured the payment of such compensation with any corporation or reciprocal or interinsurance exchange authorized to transact the business of workers' compensation insurance in this State.
    2. By obtaining and keeping in force guarantee insurance with any company authorized to do such guarantee business within the State.
    3. By establishing and maintaining to the satisfaction of the Commissioner the employer's financial responsibility necessary to secure payment by the employer of compensation according to the terms of this chapter. The Department of Financial Regulation shall provide technical assistance and a recommendation on each self-insurance application to the Commissioner. For purposes of this subdivision, the Commissioner shall, after consultation with the Commissioner of Financial Regulation, adopt rules and impose terms and conditions, including surety bonds, cash deposits, or reserves and excess risk insurance, as necessary to ensure the same security for compensation as provided under contract for workers' compensation or guarantee insurance. The fund shall be free from attachment or trustee process so long as any liability for the compensation exists.
    4. By participating to the satisfaction of the Commissioner of Labor in a nonprofit, self-insurance corporation approved by the Commissioner of Financial Regulation under this chapter.
  2. In the event an employer fails to secure workers' compensation as required by this section and an employee reasonably believes that he or she has received a personal injury by accident arising out of and in course of employment with that employer, then:
    1. If the employer is a corporation, the officers and majority stockholders of the corporation shall be personally liable for any benefits owed to the injured employee under this chapter.
    2. If the employer is a partnership, the partners shall be personally liable for any benefits owed to the injured employee under this chapter.
    3. If the employer is neither a corporation nor a partnership, the principals, executive officers, or controlling parties of the business, or all of these, shall be personally liable for any benefits owed to the injured employee under this chapter.
  3. Upon filing a claim for benefits under this chapter or if the employee elects to bring a civil action pursuant to subsection 618(b) of this title, the employee may obtain a lien against the property of the employer or the personal property of any persons described in subsection (b) of this section.
  4. The remedies provided in this section shall be in addition to any other remedies and penalties available under law.
  5. All insurance carriers authorized to write workers' compensation insurance coverage in Vermont shall make available, at the written request of the employer, a workers' compensation insurance rate that contains a deductible provision that binds the employer to reimburse the workers' compensation insurer for at least the first $500.00 of benefits, medical or indemnity, due to an injured employee. Claims shall be adjusted and paid by the insurer, and the employer shall reimburse the insurer for the amount of the deductible.

    Amended 1971, No. 31 , § 4, eff. March 31, 1971; 1981, No. 165 (Adj. Sess.), § 6; 1985, No. 194 (Adj. Sess.), § 10; 1989, No. 225 (Adj. Sess.), § 25(b); 1993, No. 225 (Adj. Sess.), §§ 14, 28a; 1995, No. 180 (Adj. Sess.), § 38(a); 1997, No. 19 , § 7; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2007, No. 208 (Adj. Sess.), § 9; 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012.

History

Source. V.S. 1947, § 8141. 1939, No. 185 , § 1. P.L. § 6559. G.L. § 5816. 1917, No. 173 , § 7. 1915, No. 164 , § 45.

2013. In subdiv. (a)(3), deleted "but not limited to" following "including" in accordance with 2013, No. 5 , § 4.

2003. In subdiv. (a)(4), substituted "this chapter" for "chapter 9 of this title" to conform reference to V.S.A. style.

Revision note - In subdiv. (4), deleted "subchapter 1" preceding "of this title" to conform reference to the structure of 21 V.S.A. chapter 9.

Amendments--2011 (Adj. Sess.). Subdiv. (a)(3): Substituted "Commissioner of Financial Regulation" for "commissioner of banking, insurance, securities, and health care administration" and "Department of Financial Regulation" for "department of banking, insurance, securities, and health care administration".

Subdiv. (a)(4): Substituted "Commissioner of Financial Regulation" for "commissioner of banking, insurance, securities, and health care administration".

Amendments--2007 (Adj. Sess.). Subsec. (e): Added.

Amendments--2005 (Adj. Sess.) Subdiv. (a)(4): Substituted "Commissioner of Labor" for "commissioner of labor and industry".

Amendments--1997 Designated the existing provisions of the section as subsec. (a) and added subsecs. (b)-(d).

Amendments--1995 (Adj. Sess.) Substituted "Commissioner of Banking, Insurance, Securities, and Health Care Administration" for "commissioner of banking, insurance, and securities" in subdivs. (3) and (4) and "Department of Banking, Insurance, Securities, and Health Care Administration" for "department of banking, insurance, and securities" in subdiv (3).

Amendments--1993 (Adj. Sess.). Made minor changes in phraseology in the introductory paragraph, deleted "of labor and industry" following "satisfaction of the Commissioner" in the first sentence, added the second sentence, and deleted "of labor and industry" preceding "shall after consultation" in the third sentence of subdiv. (3) and added subdiv. (4).

Amendments--1989 (Adj. Sess.). Subdiv. (3): Substituted "Commissioner of Banking, Insurance, and Securities" for "commissioner of banking and insurance" in the second sentence.

Amendments--1985 (Adj. Sess.). Rewrote subdiv. (3) and deleted former subdivs. (4) and (5).

Amendments--1981 (Adj. Sess.). Introductory paragraph: Deleted "mentioned in section 626 of this title" following "municipal bodies".

Subdiv. (1): Substituted "workers"' for "workmen's" preceding "compensation insurance".

Amendments--1971. Subdiv. (1): Inserted "or reciprocal or interinsurance exchange" following "corporation".

2011 Statutory revision 2011, No. 78 (Adj. Sess.), § 2 provides: "The Legislative Council, in its statutory revision authority under 2 V.S.A. § 424, is directed to replace the term 'commissioner of banking, insurance, securities, and health care administration' in the Vermont Statutes Annotated wherever it appears with the term 'Commissioner of Financial Regulation'; and to replace the term 'department of banking, insurance, securities, and health care administration' wherever it appears with the term 'Department of Financial Regulation.'"

Cross References

Cross references. Penalties for failure to comply with provisions of section, see § 692 of this title.

Penalties for noncompliance, see § 692 of this title.

Employees not to pay for insurance, see § 699 of this title.

Insurance by State and municipalities, see § 698 of this title.

Mutual workers' compensation insurance associations, see 8 V.S.A. § 4361 et seq.

Posting of notice of compliance, see § 691 of this title.

Registration, see § 705 of this title.

ANNOTATIONS

1. Purpose.

Purpose of requirement that employer shall insure and keep insured payment of compensation thereunder with any corporation authorized to transact such insurance business in state, is not only to secure injured employee against financial irresponsibility of his employer, but also for benefit of employer by having insurer assume his obligation to pay compensation. DeGray v. Miller Brothers Construction Co., Inc., 106 Vt. 259, 173 A. 556 (1934).

Cited. Quinn v. Pate, 124 Vt. 121, 197 A.2d 795 (1964); Ryan v. New Bedford Cordage Co., 421 F. Supp. 794 (D. Vt. 1976).

§ 687a. Self-insurance by associations.

  1. Any association which has been in existence in this State for five or more continuous years may establish and maintain a nonprofit corporation to secure workers' compensation insurance for employees of participating member employers and for employees of the association. The Commissioner of Financial Regulation shall assist with the establishment of a nonprofit corporation organized for the purpose of providing compensation under this chapter.
  2. No association electing to provide workers' compensation benefits under this chapter shall commence business for the purpose of distributing, sharing, or pooling any workers' compensation risk until a plan for the operation of the corporation and all contracts, agreements, and any other documents underlying or implementing the plan, and all amendments to those documents, have been approved by the Commissioner of Financial Regulation.
  3. The Commissioner of Financial Regulation shall promptly adopt interim rules to assist in the formation of the nonprofit corporations and to expedite approval of any plan of operation. The Commissioner shall also adopt rules relating to the administration and operation of the nonprofit corporations in order to provide for the fiscal integrity of agreements and to provide that trade, market, and claim practices engaged in by the nonprofit corporations are equitable, fair, and consistent. In adopting these rules, the Commissioner shall recognize that the nonprofit corporations are not for profit; that they are undertaking a service to the association's participating employers to control excessive workers' compensation insurance premiums; and that they shall not be considered insurance companies or insurers under the laws of this State. The rules shall be modeled after the rules now in effect for intermunicipal insurance agreements authorized by 24 V.S.A. chapter 121, subchapter 6, and for captive insurance companies chartered under 8 V.S.A. chapter 141.
  4. A nonprofit corporation established under this section:
    1. Shall have as its purposes: reducing the risk of its members; safety inspections; distributing, sharing, and pooling risks; acquiring insurance, excess loss insurance, or reinsurance; and processing, paying, and defending claims of employees of employers who are members of the association.
    2. Shall have the same persons serve as directors who serve as directors of the association.
    3. Shall have the same name as the association with the additional words: "Workers' Compensation Self-Insurance Corporation."
    4. May enter into agreements for obtaining or effecting insurance by self-insurance, for obtaining or effecting workers' compensation insurance from any insurer authorized to transact business in this State as an admitted or surplus lines carrier, or for obtaining and effecting insurance secured in accordance with any other method provided by law, or by combination of the provisions of this section for obtaining and effecting insurance. Agreements made pursuant to this subsection shall provide for pooling of self-insurance reserves, risks, claims and losses, and administrative services and expenses associated with the agreement among participating employers.
  5. Any contributions made to a nonprofit corporation established under this section for the purpose of distributing, sharing, or pooling risks, shall be made on an actuarially sound basis, and the nonprofit corporation shall have its books, records, and financial affairs audited annually. A copy of the annual audit shall be provided to the board of directors of the association or its governing body, to each participating employer, and to the Commissioner of Financial Regulation.

    Added 1993, No. 225 (Adj. Sess.), § 31; amended 1995, No. 180 (Adj. Sess.), § 38(a); 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012.

History

Revision note. Substituted "chapter" for "subchapter" in the second sentence of subsec. (a) and in subsec. (b) to conform references to the structure of 21 V.S.A. Chapter 9.

Amendments--2012 (Adj. Sess.). Substituted "Commissioner of Financial Regulation" for "commissioner of banking, insurance, securities, and health care administration" in subsecs. (a) through (c), and (e).

Amendments--1995 (Adj. Sess.) Substituted "Commissioner of Banking, Insurance, Securities, and Health Care Administration" for "commissioner of banking, insurance, and securities" in subsecs. (a), (b), (c) and (e).

2011 Statutory revision 2011, No. 78 (Adj. Sess.), § 2 provides: "The Legislative Council, in its statutory revision authority under 2 V.S.A. § 424, is directed to replace the term 'commissioner of banking, insurance, securities, and health care administration' in the Vermont Statutes Annotated wherever it appears with the term 'Commissioner of Financial Regulation'; and to replace the term 'department of banking, insurance, securities, and health care administration' wherever it appears with the term 'Department of Financial Regulation.'"

§ 688. Administrative penalties; insurance company's license suspended.

  1. The Commissioner, after notice and opportunity for a hearing, may assess administrative penalties of not more than $5,000.00 against any employer, insurance company, or their agents that the Commissioner finds has refused or neglected to comply with the reasonable rules and regulations of the Commissioner or any orders issued by the Commissioner, or to adjust and pay compensation and medical bills in accordance with the provisions of this chapter.
  2. The notice and opportunity for a hearing under this section shall be in accordance with 3 V.S.A. chapter 25. The Commissioner shall adopt rules regarding the amount and imposition of penalties.
  3. In addition to assessing administrative penalties, the Commissioner may refer to the Commissioner of Financial Regulation any insurance company authorized to transact workers' compensation insurance in this State which refuses or neglects to comply with the reasonable rules and regulations of the Commissioner or which neglects or refuses to properly and promptly adjust and pay compensation and medical bills in accordance with the provisions of this chapter. If, after hearing, the Commissioner of Financial Regulation finds that the insurance company has failed to comply with the rules and regulations or orders issued by the Commissioner of Labor or has failed to properly and promptly pay compensation and medical bills as provided by this chapter, the Commissioner of Financial Regulation may take appropriate action against the insurance company as provided in Title 8.

    Amended 1989, No. 225 (Adj. Sess.), § 25(b); 1993, No. 225 (Adj. Sess.), § 15; 1995, No. 180 (Adj. Sess.), § 38(a); 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012.

History

Source. V.S. 1947, § 8142. P.L. § 6560. 1919, No. 157 , § 6.

Amendments--2011 (Adj. Sess.). Subsec. (c): Substituted "Commissioner of Financial Regulation" for "commissioner of banking, insurance, securities, and health care administration" in two places.

Amendments--2005 (Adj. Sess.) Subsec. (c): Substituted "Commissioner of Labor" for "commissioner of labor and industry".

Amendments--1995 (Adj. Sess.) Subsec. (c): Substituted "Commissioner of Banking, Insurance, Securities, and Health Care Administration" for "commissioner of banking, insurance, and securities" wherever it appeared.

Amendments--1993 (Adj. Sess.). Section amended generally.

Amendments--1989 (Adj. Sess.). Substituted "banking, insurance, and securities commissioner" for "banking and insurance commissioner" at the end of the first sentence.

2011 Statutory revision 2011, No. 78 (Adj. Sess.), § 2 provides: "The Legislative Council, in its statutory revision authority under 2 V.S.A. § 424, is directed to replace the term 'commissioner of banking, insurance, securities, and health care administration' in the Vermont Statutes Annotated wherever it appears with the term 'Commissioner of Financial Regulation'; and to replace the term 'department of banking, insurance, securities, and health care administration' wherever it appears with the term 'Department of Financial Regulation.'"

Cross References

Cross references. Administrative penalty for false representation, see § 708 of this title.

Administrative penalty for refusal or neglect to register with Department of Labor, see § 705 of this title.

ANNOTATIONS

1. Guidelines required.

Because the Commissioner is required by this section "to adopt rules regarding the amount and imposition of penalties," imposition of a $5,000 fine against an employer for failure to maintain workers' compensation insurance was reversed because the Commissioner failed to promulgate rules identifying the guidelines used to determine the amount of the fine. Workers' Comp. Div. v. Hodgdon, 171 Vt. 526, 759 A.2d 73 (mem.) (2000).

§ 689. Employer compelled to insure.

If an employer who secures the payment of compensation under the provisions of subdivision 687(3) of this title neglects or refuses to comply with the reasonable rules and regulations of the Commissioner or neglects and refuses to promptly adjust and pay all compensation and medical bills as required by law, the Commissioner may cite in the employer. If on hearing it is found that such neglect or refusal is willful, the Commissioner may revoke the permission granted to such employer to secure the payment of compensation under such subdivision and compel the employer to take out insurance in an insurance company authorized to transact compensation insurance in the State in addition to penalties assessed under section 688 of this title.

Amended 1993, No. 225 (Adj. Sess.), § 16.

History

Source. V.S. 1947, § 8143. P.L. § 6561. 1919, No. 159 , § 6.

Revision note. To conform references to the text of section 687 of this title, as amended, substituted "subdivision (3)" for "subdivisions (3), (4) and (5)" in the first sentence and "such subdivision" for "either one or all of such subdivisions" in the second sentence.

Amendments--1993 (Adj. Sess.). Deleted "when" following "insure" in the section catchline and "of labor and industry" preceding "or neglects" in the first sentence, added "in addition to penalties assessed under section 688 of this title" following "insurance in the state" in the second sentence and made other minor changes in phraseology throughout the section.

§ 690. Certificate, form; copy of policy.

  1. An employer subject to the provisions of this chapter who has workers' compensation insurance coverage pursuant to section 687 or 689 of this title shall file with the Commissioner a certificate of the insurance in a form prescribed by the Commissioner. The certificate shall include the policy number, effective date, date of expiration, operations covered, and such other information the Commissioner requests. The certificate shall be signed by a duly authorized representative of the insurance or guarantee company that issued the insurance coverage. Upon request, the insurance or guarantee company shall file with the Commissioner a copy of the contract or policy of insurance issued.
    1. In addition to any other authority provided to the Commissioner pursuant to this chapter, the Commissioner may issue a written request to an employer subject to the provisions of this chapter to provide a workers' compensation compliance statement on a form provided by the Commissioner. For the purposes of this subsection, an employer includes subcontractors and independent contractors. The form shall require all the following information sorted by job site: (b) (1)  In addition to any other authority provided to the Commissioner pursuant to this chapter, the Commissioner may issue a written request to an employer subject to the provisions of this chapter to provide a workers' compensation compliance statement on a form provided by the Commissioner. For the purposes of this subsection, an employer includes subcontractors and independent contractors. The form shall require all the following information sorted by job site:
      1. The number of employees employed during the entire current workers' compensation policy term or the previous year if no policy was in effect or partially in effect prior to the request and the effective dates of the term of any policies in effect.
      2. The total number of hours for which compensation was paid.
      3. A list of all subcontractors and 1099 workers and their function on the job site for the period in question.
      4. The name of the workers' compensation insurance carrier, the policy number, and the agent, if any.
      5. As an attachment, the insurance policy declaration pages, including how much payroll the policy is covering and a designation of the hours that provide the basis of the appropriate National Council on Compensation Insurance classification code.
    2. Any employer who fails to comply with this subsection or falsifies information on the compliance statement may be assessed an administrative penalty of not more than $5,000.00 for each week during which the noncompliance or falsification occurred and any costs and attorney's fees required to enforce this subsection. The Commissioner may also seek injunctive relief in Washington Superior Court.
    3. A compliance statement shall be a public record, and the Commissioner shall provide a copy of a compliance statement to any person on request. An insurance company provided with a compliance statement may investigate the information in the statement. Based on evidence that an employer is not in compliance with this chapter, the Commissioner shall request a compliance statement or an amended compliance statement from the employer, investigate further, and take appropriate enforcement action.
    4. In the event the Commissioner receives a request for an employer to provide a compliance statement but finds no evidence of noncompliance with this chapter, the Commissioner shall provide timely notification of the findings to the requesting party.

      Amended 2007, No. 57 , § 1; 2009, No. 54 , § 80, eff. June 1, 2009.

History

Source. V.S. 1947, § 8144. 1943, No. 129 . P.L. § 6562. G.L. § 5817. 1917, No. 171 , § 3. 1915, No. 164 , § 46.

2003. Substituted "subdivisions (a)(1) or (a)(2)" for "subdivisions (1) and (2)" to conform reference to V.S.A. style.

Amendments--2009. Section amended generally.

Amendments--2007. Section amended generally.

ANNOTATIONS

1. Restrictive provisions.

The rights of an employee under this chapter cannot be narrowed by contract between the employer and his insurer where there is no certificate on file with the commissioner, as to the policy in force, which discloses restrictive provisions. Morrisseau v. Legac, 123 Vt. 70, 181 A.2d 53 (1962).

§ 691. Posting of notice of compliance.

An employer who has complied with the provisions of this chapter relating to securing the payment of compensation to his or her employees and their dependents shall post and maintain, in a conspicuous place in and about each of his or her places of business, typewritten or printed notices in form prescribed by the Commissioner stating that fact.

History

Source. V.S. 1947, § 8145. P.L. § 6563. 1933, No. 157 , § 6237. G.L. § 5818. 1917, No. 171 , § 3. 1915, No. 164 , § 47.

ANNOTATIONS

Cited. Longe v. Boise Cascade Corp., 171 Vt. 214, 762 A.2d 1248 (2000).

§ 691a. Posting of safety records.

  1. In support of the State's fundamental interest in ensuring the well-being of employees and employers, it is the intent of the General Assembly to improve the safety experience in the workplace.
  2. An employer subject to the provisions of this chapter shall post a notice in the employer's place of business to advise employees of where they may review the employer's record of workplace safety, including workplace injury and illness data, in accordance with rules adopted by the Commissioner. The employer's record of workplace safety, including workplace injury and illness data, shall be available for review by employees at the employer's place of business and the Commissioner, but shall not otherwise be public information. The posting shall be in a format approved by the Commissioner. The posting may be in a format provided by the Commissioner.

    Added 2013, No. 199 (Adj. Sess.), § 55.

§ 692. Penalties; failure to insure; stop work orders.

  1. Failure to insure.  If after a hearing under section 688 of this title, the Commissioner determines that an employer has failed to comply with the provisions of section 687 of this title, the employer shall be assessed an administrative penalty of not more than $100.00 for every day for the first seven days the employer neglected to secure liability and not more than $150.00 for every day thereafter.
  2. Stop-work orders.  If an employer fails to comply with the provisions of section 687 of this title after investigation by the Commissioner, the Commissioner shall issue an emergency order to that employer to stop work until the employer has secured workers' compensation insurance. If the Commissioner determines that issuing a stop-work order would immediately threaten the safety or health of the public, the Commissioner may permit work to continue until the immediate threat to public safety or health is removed. The Commissioner shall document the reasons for permitting work to continue, and the document shall be available to the public. In addition, the employer shall be assessed an administrative penalty of not more than $250.00 for every day that the employer fails to secure workers' compensation coverage after the Commissioner issues an order to obtain insurance and may also be assessed an administrative penalty of not more than $250.00 for each employee for every day that the employer fails to secure workers' compensation coverage as required in section 687 of this title. When a stop-work order is issued, the Commissioner shall post a notice at a conspicuous place on the work site of the employer informing the employees that their employer failed to comply with the provisions of section 687 of this title and that work at the work site has been ordered to cease until workers' compensation insurance is secured. The stop-work order shall be rescinded as soon as the Commissioner determines that the employer is in compliance with section 687 of this title. An employer against whom a stop-work order has been issued is prohibited from contracting, directly or indirectly, with the State or any of its subdivisions for a period of up to three years following the date of the issuance of the stop-work order, as determined by the Commissioner in consultation with the Commissioner of Buildings and General Services or the Secretary of Transportation, as appropriate. Either the Secretary or the Commissioner, as appropriate, shall be consulted in any contest of the prohibition of the employer from contracting with the State or its subdivisions.
  3. Penalty for violation of stop-work order.  In addition to any other penalties, an employer who violates a stop-work order described in subsection (b) of this section is subject to:
    1. a civil penalty of not more than $5,000.00 for the first violation and a civil penalty of not more than $10,000.00 for a second or subsequent violation; or
    2. a criminal fine of not more than $10,000.00 or imprisonment for not more than 180 days, or both.

      Amended 1977, No. 182 (Adj. Sess.), § 17, eff. May 3, 1978; 1985, No. 194 (Adj. Sess.), § 8; 1993, No. 225 (Adj. Sess.), § 17; 1997, No. 19 , §§ 8, 9; 2007, No. 57 , § 2; 2009, No. 142 (Adj. Sess.), § 3; 2011, No. 50 , § 5, eff. May 26, 2011.

History

Source. V.S. 1947, § 8146. 1941, No. 161 . P.L. § 6564. G.L. § 5819. 1915, No. 164 , § 48.

Amendments--2011. Subsec. (a): Inserted "for every day" following "$100.00".

Amendments--2009 (Adj. Sess.) Section amended generally.

Amendments--2007 Subsec. (a): Substituted "$100.00" for "$50.00" preceding "for every day" and deleted "but in no case shall the fine be more than $5,000.00" at the end.

Subsec. (b): Substituted "$250.00" for "$150.00" preceding "for every day" in the first sentence.

Amendments--1997 Subsec. (b): Rewrote the first sentence and deleted "of his or her intention to do so" following "giving notice", substituted "five-day period" for "thirty-day period" and deleted "or at his or her place of work" preceding "informing" in the second sentence.

Subsec. (c): Added.

Amendments--1993 (Adj. Sess.). Subsec. (a): Substituted "if after hearing under section 688 of this title, the commissioner determines that an employer has failed" for "any employer who fails" preceding "to comply", "of this title, the employer shall be assessed an administrative penalty of" for "shall be fined" preceding "not more than $50.00", "neglected" for "neglects" preceding "to secure liability" and "$5,000.00" for "$1500.00".

Subsec. (b): Substituted "assessed an administrative penalty of" for "fined" preceding "not more than $150.00" and made minor changes in phraseology in the first sentence, and added "and ordering the premises closed until workers' compensation insurance is secured" following 687 of this title.

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1977 (Adj. Sess.). Substituted "$100.00" for "$25.00" preceding "for every day" and added the second sentence.

Cross References

Cross references. Administrative penalties, see § 688 of this title.

ANNOTATIONS

1. Guidelines required.

The authority granted by this section to impose penalties is limited by the requirement in 21 V.S.A § 688, that the Commissioner establish guidelines for determining the amount of the penalty. Workers' Comp. Div. v. Hodgdon, 171 Vt. 526, 759 A.2d 73 (mem.) (2000).

§ 693. The insurance contract.

Every policy of insurance and every guarantee contract covering the liability of an employer for compensation shall cover the entire liability of such employer to his or her employees covered by such policy or contract and also shall contain a provision setting forth the right of the employees to enforce, in their own names, the liability of the insurance carrier in whole or in part for the payment of such compensation, either by filing a separate claim at any time or by making at any time the insurance carrier a party to the original claim. However, the payment in whole or in part of such compensation by either the employer or the insurance carrier shall, to the extent thereof, be a bar to the recovery against the other of the amount so paid.

History

Source. V.S. 1947, § 8147. P.L. § 6565. G.L. § 5820. 1915, No. 164 , § 49.

Cross References

Cross references. Rate regulation, see 8 V.S.A. § 4681 et seq.

ANNOTATIONS

Analysis

1. Nature of carrier's liability.

The liability of an insurance carrier under this chapter is more than that of a mere indemnitor, being primary and direct, and the injured employee has the option of proceeding directly against the insurer as a party defendant. Marsigli's Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 197 A.2d 799 (1964).

A company which insures the liability of an employer to pay compensation under this chapter thereby assumes the entire liability of the employer to pay such compensation. Morrisseau v. Legac, 123 Vt. 70, 181 A.2d 53 (1962).

The liability of any party under this chapter, if once found to exist, is primary, and there can be no priority between two or more parties in such position. Morrisseau v. Legac, 123 Vt. 70, 181 A.2d 53 (1962).

Liability of insurance carrier under this chapter is more than that of an indemnitor, being primary liability to injured employee to extent of employer's liability to injured employee. DeGray v. Miller Brothers Construction Co., 106 Vt. 259, 173 A. 556 (1934).

2. Policy coverage.

Under this section, full coverage is extended to all employees working in this state without regard to the place where they were hired. Morrisseau v. Legac, 123 Vt. 70, 181 A.2d 53 (1962).

This chapter is a part of the insurance carrier's contract. Morrisseau v. Legac, 123 Vt. 70, 181 A.2d 53 (1962).

It is permissible for an insurance company to issue a policy to a Vermont employer covering all his operations and entire liability to his employees under this chapter except as to his operations at some particular place in Vermont. 1938-40 Op. Atty. Gen. 258.

3. Public policy.

As a matter of public policy, any part of an insurance contract in derogation of this chapter should be nullified by the courts. Morrisseau v. Legac, 123 Vt. 70, 181 A.2d 53 (1962).

4. Recovery in other state.

Where employee was fatally injured in Vermont while working under contract made in Connecticut, and his dependent widow elected to apply for and accepted compensation under Connecticut Workmen's Compensation Act, such election discharged employer from any obligation to pay her compensation under section 618 of this title, and also discharged insurance carrier from obligation to pay her compensation, since obligation assumed by it was obligation of employer to pay under provisions of Vermont law. DeGray v. Miller Brothers Construction Co., 106 Vt. 259, 173 A. 556 (1934).

§ 694. Knowledge of employer to affect insurance carrier.

Such policies and contracts shall contain a provision that, as between the employee and the insurance carrier, notice to or knowledge of the occurrence of an injury on the part of the employer shall be deemed notice or knowledge, as the case may be on the part of the insurance carrier; that jurisdiction of the employer shall, for the purpose of this chapter, be jurisdiction of the insurance carrier; and that the insurance carrier shall in all things be bound by and subject to the orders, findings, decisions, or awards rendered against the employer for the payment of compensation under the provisions of this chapter.

History

Source. V.S. 1947, § 8148. P.L. § 6566. G.L. § 5821. 1915, No. 164 , § 50.

§ 695. Insolvency of employer not to release insurance carrier.

Such policies and contracts shall contain a provision to the effect that the insolvency or bankruptcy of the employer and his or her discharge therein shall not relieve the insurance carrier from the payment of compensation for injuries or death sustained by an employee during the life of such a policy or contract.

History

Source. V.S. 1947, § 8149. P.L. § 6567. G.L. § 5822. 1915, No. 164 , § 51.

§ 696. Cancellation of insurance contracts.

A policy or contract shall not be cancelled within the time specified in the policy or contract for its expiration, until at least 45 days after a notice of intention to cancel the policy or contract, on a date specified in the notice, has been filed in the office of the Commissioner and provided to the employer. The notice shall be filed with the Commissioner in accordance with rules adopted by the Commissioner and provided to the employer by certified mail. The cancellation shall not affect the liability of an insurance carrier on account of an injury occurring prior to cancellation.

Amended 1989, No. 171 (Adj. Sess.), § 9, eff. Sept. 1, 1990; 2007, No. 57 , § 3; 2013, No. 199 (Adj. Sess.), § 56.

History

Source. V.S. 1947, § 8150. 1941, No. 162 , § 1. P.L. § 6568. G.L. § 5823. 1917, No. 171 , § 3. 1915, No. 164 , § 52.

Amendments--2013 (Adj. Sess.). Substituted "specified" for "limited" following "cancelled within the time", inserted "with the Commissioner in accordance with rules adopted by the Commissioner" following "The notice shall be filled" and "to the employer" preceding "by certified mail", and deleted "or certificate of mailing" at the end of the second sentence.

Amendments--2007. Substituted "A" for "Such a" at the beginning of the first sentence, substituted "The" and "the" for "Such" and "such" throughout, and deleted "such" preceding "cancellation" at the end of the last sentence.

Amendments--1989 (Adj. Sess.). Substituted "45" for "thirty" preceding "days after" and "provided to" for "also served on" following "Commissioner and" in the first sentence and added the second sentence.

§ 697. Notice of intent not to renew policy.

An insurance carrier who does not intend to renew a workers' compensation insurance policy or guarantee contract covering the liability of an employer under the provisions of this chapter shall give notice of its intention to the Commissioner and the covered employer at least 45 days prior to the expiration date stated in the policy or contract. The notice shall be given to the employer by certified mail. An insurance carrier who fails to give notice shall continue the policy or contract in force beyond its expiration date for 45 days from the day the notice is received by the Commissioner and the employer. However, if, on or before the expiration of the existing insurance or guarantee contract the insurance carrier has, by delivery of a renewal contract or otherwise, offered to continue the insurance, or if the employer notifies the insurance carrier in writing that the employer does not wish the insurance continued beyond the expiration date, or if the employer complies with the provisions of section 687 of this title, then the policy will expire upon notice to the Commissioner.

Amended 1981, No. 165 (Adj. Sess.), § 1; 1989, No. 171 (Adj. Sess.), § 10, eff. Sept. 1, 1990; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2007, No. 57 , § 4; 2013, No. 199 (Adj. Sess.), § 57.

History

Source. V.S. 1947, § 8151. 1945, No. 147 , § 1.

Amendments--2013 (Adj. Sess.). Section amended generally.

Amendments--2007. Substituted "The" and "the" for "Such" and "such" throughout, deleted "such" following "to give" in the third sentence; and substituted "the employer" for "he" following "carrier that" in the fourth sentence.

Amendments--2005 (Adj. Sess.) Substituted "Commissioner of Labor" for "commissioner of labor and industry" in the first sentence.

Amendments--1989 (Adj. Sess.). Added the second sentence and substituted "45" for "thirty" in the first and third sentences.

Amendments--1981 (Adj. Sess.). Substituted "workers"' for "workmen's" preceding "compensation" in the first sentence.

§ 698. Insurance by State and municipalities.

The State and municipalities which are liable to their employees for compensation under the provisions of this chapter may insure with an authorized insurance carrier.

History

Source. V.S. 1947, § 8152. P.L. § 6569. 1927, No. 98 , § 3. G.L. § 5824. 1915, No. 164 , § 53.

§ 699. Employees not to pay for insurance.

An agreement by an employee to pay any portion of the cost of insurance of any kind maintained or carried by an employer for the purpose of securing compensation under the provisions of this chapter shall be void. An employer who makes a deduction for such purpose from the wages or salary of an employee entitled to the benefits of this chapter shall be fined not more than $500.00.

History

Source. V.S. 1947, § 8153. P.L. § 6570. G.L. § 5825. 1915, No. 164 , § 54.

Cross References

Cross references. Employees not to pay for unemployment compensation contributions, see § 1323 of this title.

ANNOTATIONS

1. Construction with other laws.

21 V.S.A. § 624 does not conflict with this section; if their provisions are interpreted harmoniously, 21 V.S.A. § 624 presents a complete and logical apportionment of risks, costs, and benefits, under various accident scenarios, among the employee injured in an accident, the workers' compensation carrier, and the employer's private liability insurer. Travelers Cos. v. Liberty Mutual Insurance Co., 164 Vt. 368, 670 A.2d 827 (1995).

§ 700. Examination of policy.

At the request of a holder of a policy of workers' compensation insurance, the Commissioner of Financial Regulation shall examine the policy to determine whether the proper assignment has been made as to classification, rates, and advance premium charged.

Amended 1981, No. 165 (Adj. Sess.), § 1; 1989, No. 225 (Adj. Sess.), § 25(b); 1995, No. 180 (Adj. Sess.), § 38(a); 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012.

History

Source. V.S. 1947, § 8154. 1943, No. 125 , § 2.

Amendments--2011 (Adj. Sess.). Substituted "Commissioner of Financial Regulation" for "commissioner of banking, insurance, securities, and health care administration".

Amendments--1995 (Adj. Sess.) Substituted "Commissioner of Banking, Insurance, Securities, and Health Care Administration" for "commissioner of banking, insurance, and securities".

Amendments--1989 (Adj. Sess.). Substituted "Commissioner of Banking, Insurance, and Securities" for "commissioner of banking and insurance".

Amendments--1981 (Adj. Sess.). Substituted "workers'" for "workmen's" preceding "compensation".

2011 Statutory revision 2011, No. 78 (Adj. Sess.), § 2 provides: "The Legislative Council, in its statutory revision authority under 2 V.S.A. § 424, is directed to replace the term 'commissioner of banking, insurance, securities, and health care administration' in the Vermont Statutes Annotated wherever it appears with the term 'Commissioner of Financial Regulation'; and to replace the term 'department of banking, insurance, securities, and health care administration' wherever it appears with the term 'Department of Financial Regulation.'"

§ 701. Reports of accidents by employers.

Every employer liable to pay compensation under the provisions of this chapter shall keep a record of all injuries, fatal or otherwise, sustained by his or her employees in the course of their employment and shall report such an injury causing an absence of one day or more, or necessitating medical attendance, to the Commissioner in writing upon forms to be procured from him or her for such purpose within 72 hours, Sundays and legal holidays excluded, after the occurrence of such an injury. At the termination of the disability of such injured employee, such employer shall make a final report upon forms to be procured as herein provided. If such disability extends beyond a period of 60 days, at the expiration of each 60-day period, such employer shall make a supplemental report to the Commissioner that such injured employee is still disabled and, at the termination of such disability, shall file a final report as provided in this section.

History

Source. V.S. 1947, § 8155. P.L. § 6571. G.L. § 5826. 1917, No. 173 , § 8. 1917, No. 254 , § 5689. 1915, No. 164 , § 55.

Cross References

Cross references. Statistical reports, see § 704 of this title.

ANNOTATIONS

1. Unemployment benefits claim.

Court rejected the argument of a claimant for unemployment benefits that the employer's violations of the workers' compensation reporting requirement and its arguable violation of the prohibition against employer-mandated polygraphs provided per se good cause for the claimant to quit her job. The referee and the Employment Security Board found that the claimant prematurely quit because she was offended by the employer's suggestion that she was lying about the circumstances surrounding her back injury, not because she felt threatened that she would be fired if she refused to take a polygraph test; furthermore, there was no evidence that the claimant faced having to forego her workers' compensation claim. Quick v. Dep't of Labor, 187 Vt. 585, 992 A.2d 1028 (mem.) (2009).

§ 702. Contents; penalty.

Such reports shall state the name and nature of the business of the employer, the location of the place where the accident occurred, the name, age, sex, wages, and occupation of the injured employee and shall state the date and hour of the accident causing the injury, its nature and cause and such other information as may be required by the Commissioner. An employer who refuses or neglects to make such reports may be assessed an administrative penalty of not more than $100.00 per violation after notice and opportunity for hearing under section 688 of this title.

Amended 1993, No. 225 (Adj. Sess.), § 18.

History

Source. V.S. 1947, § 8156. P.L. § 6572. G.L. § 5826. 1917, No. 173 , § 8. 1917, No. 254 , § 5689. 1915, No. 164 , § 55.

Amendments--1993 (Adj. Sess.). Made minor changes in phraseology in the first sentence and substituted "may be assessed an administrative penalty of not more than $100.00 per violation after notice and opportunity for hearing under section 688 of this title" for "shall be fined not more than $25.00" following "neglects to make such reports" in the second sentence.

§ 703. Reports of payments made by employers.

Within 60 days after disability, such employer or other party liable to pay the compensation provided for by this chapter shall file with the Commissioner a statement showing the total payments made or to be made for compensation and for medical services for such injured employee.

History

Source. V.S. 1947, § 8157. P.L. § 6573. G.L. § 5826. 1917, No. 173 , § 8. 1917, No. 254 , § 5689. 1915, No. 164 , § 55.

§ 704. Reports, penalty.

An employer as defined in section 616 of this title, upon written request of the Commissioner, sent by certified mail, shall file on forms provided by the Commissioner such statistical information regarding employments, accidents arising out of or in the course of employment, and safety in employment, as the Commissioner may require. Such report shall be required not more than once in any calendar year and shall be on uniform forms applicable to all employers from whom such information is required. An employer who refuses or neglects to file the statistical report within 30 days after a request by the Commissioner, may be assessed an administrative penalty of not more than $1,000.00.

Amended 1971, No. 158 (Adj. Sess.), § 3; 1993, No. 225 (Adj. Sess.), § 19.

History

Source. V.S. 1947, § 8158. 1945, No. 148 , § 1. P.L. § 6574. G.L. § 5827. 1917, No. 173 , § 12.

Reference in text. Reference to "employer as defined in section 616 of this title" is obsolete. Section 616 of this title, as amended, no longer defines employer.

Amendments--1993 (Adj. Sess.). Substituted "a request by the commissioner, may be assessed an administrative penalty of" for "the commissioner request him to do so, shall be fined" following "30 days after" in the third sentence.

Amendments--1971 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Reports of accidents by employers, see § 701 of this title.

§ 705. Registration, penalty.

The employers mentioned in section 704 of this title shall register with the Department of Labor, on forms provided by it, when commencing or ceasing business operations in the State and no fee shall be required by the State for that registration. An employer who refuses or neglects to register as required by this section may be assessed an administrative penalty of not more than $50.00.

Amended 1993, No. 225 (Adj. Sess.), § 20; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Source. V.S. 1947, § 8159. 1945, No. 148 , § 2.

Amendments--2005 (Adj. Sess.) Substituted "Department of Labor" for "department of labor and industry".

Amendments--1993 (Adj. Sess.). Substituted "that" for "such" preceding "registration" in the first sentence and "may be assessed an administrative penalty of" for "shall be fined" following "section" and "$50.00" for "$25.00" in the second sentence.

§ 706. Construction.

Employer, as used in sections 704 and 705 of this title shall not be construed to include persons operating farms for agricultural purposes.

History

Source. V.S. 1947, § 8160. 1945, No. 148 , § 3.

§ 707. Repealed. 2003, No. 122 (Adj. Sess.), § 294(o).

History

Former § 707. Former § 707, relating to the workers' compensation report to the Governor, was derived from V.S. 1947, § 8161; P.L. § 6575; G.L. § 5828; 1917, No. 171 , § 5 and 1915, No. 164 , § 57.

§ 708. Penalty for false representation.

  1. Action by the Commissioner of Labor.  A person who willfully makes a false statement or representation, for the purpose of obtaining any benefit or payment under the provisions of this chapter, either for herself or himself or for any other person, after notice and opportunity for hearing, may be assessed an administrative penalty of not more than $20,000.00, and shall forfeit all or a portion of any right to compensation under the provisions of this chapter, as determined to be appropriate by the Commissioner after a determination by the Commissioner that the person has willfully made a false statement or representation of a material fact. In addition, an employer found to have violated this section is prohibited from contracting, directly or indirectly, with the State or any of its subdivisions for up to three years following the date the employer was found to have made a false statement or misrepresentation of a material fact, as determined by the Commissioner in consultation with the Commissioner of Buildings and General Services or the Secretary of Transportation, as appropriate. Either the Secretary or the Commissioner, as appropriate, shall be consulted in any contest relating to the prohibition of the employer from contracting with the State or its subdivisions.
  2. When the Department of Labor has sufficient reason to believe that an employer has made a false statement or representation for the purpose of obtaining a lower workers' compensation premium, the Department shall refer the alleged violation to the Commissioner of Financial Regulation for the Commissioner's consideration of enforcement pursuant to 8 V.S.A. § 3661(c) .
  3. Any penalty assessed or order issued under this chapter or 8 V.S.A. § 3661 shall continue in effect against any successor employer that has one or more of the same principals or corporate officers as the employer against which the penalties were assessed or order issued and is engaged in the same or similar business.
  4. Notwithstanding the assessment of an administrative penalty under this section, a person may be prosecuted under 13 V.S.A. § 2024 .

    Amended 1993, No. 225 (Adj. Sess.), § 21; 1995, No. 180 (Adj. Sess.), § 38(a); 2007, No. 57 , § 5; 2009, No. 42 , § 11; 2009, No. 54 , § 79, eff. June 1, 2009; 2009, No. 142 (Adj. Sess.), § 5; 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012.

History

Source. V.S. 1947, § 8162. P.L. § 6576. G.L. § 5829. 1915, No. 164 , § 61.

2009. The text of subsection (b) is based on a correlation of two amendments. During the 2009 session, this subsection was amended twice, by Act Nos. 42 and 54, which made identical changes.

Amendments--2011 (Adj. Sess.). Subsec. (b): Substituted "commissioner of financial regulation" for "commissioner of banking, insurance, securities, and health care administration".

Amendments--2009 (Adj. Sess.) Substituted "herself" for "her" and "$20,000.00" for "$5,000.00 total" in the second sentence and added the second and third sentences in subsec. (a), added new subsec. (c), and redesignated former subsec. (c) as subsec. (d).

Amendments--2009. Subsec. (b): Rewritten by Act Nos. 42 and 54.

Amendments--2007. Subsec. (a): Added the subsec. heading and substituted "$5,000.00 total" for "$1,000.00" preceding "and shall".

Subsec. (b): Added the subsec. heading and the last sentence.

Amendments--1995 (Adj. Sess.) Subsec. (b): Substituted "Commissioner of Banking, Insurance, Securities, and Health Care Administration" for "commissioner of banking, insurance, and securities".

Amendments--1993 (Adj. Sess.). Amended section generally.

2011 Statutory revision 2011, No. 78 (Adj. Sess.), § 2 provides: "The Legislative Council, in its statutory revision authority under 2 V.S.A. § 424, is directed to replace the term 'commissioner of banking, insurance, securities, and health care administration' in the Vermont Statutes Annotated wherever it appears with the term 'Commissioner of Financial Regulation'; and to replace the term 'department of banking, insurance, securities, and health care administration' wherever it appears with the term 'Department of Financial Regulation.'"

ANNOTATIONS

Analysis

1. Purpose.

The obvious intent of subsection (a) of this section is to deter and sanction false claims for compensation, and to relieve employers from having to pay claims they would not otherwise be responsible for under the Workers' Compensation Act. Butler v. Huttig Bldg. Prods., 175 Vt. 323, 830 A.2d 44 (2003).

2. Construction .

By allowing the Commissioner of Labor and Industry to determine whether claimant should forfeit all or some of the benefits to which claimant is entitled, subsection (a) of this section also evidences an intent that the sanction be proportional, or have some relationship, to the claimant's fraud; thus, forfeiture must be no harsher than necessary to deter fraudulent claims and to ensure that the employer does not pay for a benefit to which the injured worker is not entitled. Butler v. Huttig Bldg. Prods., 175 Vt. 323, 830 A.2d 44 (2003).

3. Penalty.

Where claimant fraudulently sought reimbursement for expenses related to his medical treatment, falsified documents to increase the dosage of certain medications his doctors prescribed, and exaggerated his symptoms, the decision of the Commissioner of Labor and Industry denying him any additional medical and temporary disability benefits was reasonably related to the types of benefits he fraudulently sought. Butler v. Huttig Bldg. Prods., 175 Vt. 323, 830 A.2d 44 (2003).

Where claimant was entitled by statute to permanent disability benefits according to the unchallenged finding of the Commissioner of Labor and Industry that his disability was permanent, the statute providing a penalty for false representation did not relieve his employer from its obligation to provide permanent disability benefits. Butler v. Huttig Bldg. Prods., 175 Vt. 323, 830 A.2d 44 (2003).

§ 709. Rules of construction.

In construing the provisions of this chapter, the rule of law that statutes in derogation of the common law are to be strictly construed shall not be applied. The provisions of this chapter shall be so interpreted and construed as to effect its general purpose to make uniform the law of those states which enact it.

History

Source. V.S. 1947, § 8164. P.L. § 6578. G.L. § 5831. 1915, No. 164 , § 63.

ANNOTATIONS

1. Consequences.

In construing provisions of this chapter the courts may look to the consequences since it is to be so interpreted as to effect its general purpose. Morrisseau v. Legac, 123 Vt. 70, 181 A.2d 53 (1962).

Cited. Packett v. Moretown Creamery Co., 91 Vt. 97, 99 A. 638 (1917); O'Boyle v. Parker-Young Co., 95 Vt. 58, 112 A. 385 (1921); Petraska v. National Acme Co., 95 Vt. 76, 113 A. 536 (1921); Blake v. American Fork & Hoe Co., 99 Vt. 301, 131 A. 844 (1926); Giguere v. E.B. & A.C. Whiting Co., 107 Vt. 151, 177 A. 313 (1935); Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 417 A.2d 926 (1980); Sienkiewycz v. Dressell, 151 Vt. 421, 561 A.2d 415 (1989).

§ 710. Unlawful discrimination.

  1. No person, firm, or corporation shall refuse to employ any applicant for employment because the applicant asserted a claim for workers' compensation benefits under this chapter or under the law of any state or of the United States. Nothing in this section shall require a person to employ an applicant who does not meet the qualifications of the position sought.
  2. No person shall discharge or discriminate against an employee from employment because the employee asserted or attempted to assert a claim for benefits under this chapter or under the law of any state or of the United States.
  3. The Department shall not include in any publication or public report the name or contact information of any individual who has alleged that an employer has made a false statement or misclassified any employees, unless it is required by law or necessary to enable enforcement of this chapter.
  4. An employer shall not retaliate or take any other negative action against an individual because the employer knows or suspects that the individual has filed a complaint or reported a violation of this chapter, 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.
  5. The Attorney General or a State's Attorney may enforce the provisions of this section by restraining prohibited acts, seeking civil penalties, obtaining assurances of discontinuance, and conducting civil investigations in accordance with the procedures established in 9 V.S.A. §§ 2458-2461 as though a violation of this section were an unfair act in commerce.
  6. The provisions against retaliation in subdivision 495(a)(8) of this title and the penalty and enforcement provisions of section 495b of this title shall apply to this section.

    Added 1985, No. 194 (Adj. Sess.), § 9; amended 2009, No. 142 (Adj. Sess.), § 8, eff. June 1, 2010; 2013, No. 31 , § 9; 2017, No. 74 , § 43; 2017, No. 148 (Adj. Sess.), § 1.

History

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" in subsecs. (a) and (b), subsec. (d) amended generally, substituted "a violation of" for "discrimination under" preceding "this section" in subsec. (e), and "section" for "subchapter" following "apply to this" in subsec. (f).

Amendments--2017. Subsec. (b): Substituted "of" for "under" preceding "the United States".

Subsec. (e): Substituted "assurances of discontinuance" for "assurance" following "obtaining".

Amendments--2013. Subsec. (b): Inserted "or attempted to assert" preceding "a claim for benefits".

Subsec. (f): Added.

Amendments--2009 (Adj. Sess.) Added new subsecs. (c) and (d) and redesignated former subsecs. (c) as subsec. (e), and made a minor stylistic change in that subsection.

ANNOTATIONS

Analysis

1. Private action.

Although generally an at-will employment contract may be terminated by either party to the contract at any time with or without cause, an exception to this general rule exists when the employer's alleged actions contravene public policy, and a private action by an employee against his employer is available where the employee claims that his supervisor discriminated against him in retaliation for his filing a workers' compensation claim. Murray v. St. Michael's College, 164 Vt. 205, 667 A.2d 294 (1995).

2. Causal connection.

Trial court did not err in granting summary judgment to defendant on plaintiff's claim under subsection (b) where, because plaintiff could not carry her burden on her retaliatory-discharge claim of showing there was a causal connection between her seeking workers' compensation for her injuries and her termination, she also could not meet the threshold warranting a mixed-motives analysis, as this burden is greater than the level of proof necessary to make out a pretext prima facie case. Wentworth v. Fletcher Allen Health Care, 171 Vt. 614, 765 A.2d 456 (mem.) (2000).

In an action by an employee claiming an employer discriminated against him in retaliation for his filing a workers' compensation claim, the employer offered a legitimate, nondiscriminatory reason for imposing disciplinary measures but the timing of the alleged discriminatory treatment of the employee relative to his filing of the workers' compensation claim was sufficient to show a causal connection between the protected activity and the adverse employment decisions; consequently, summary judgment was not appropriate where genuine issues of material fact remained concerning whether the employee was discriminated against for filing a workers' compensation claim and whether the severity of the disciplinary action was the result of discriminatory disparate treatment. Murray v. St. Michael's College, 164 Vt. 205, 667 A.2d 294 (1995).

3. Jurisdiction .

In a former employee's suit asserting overtime compensation claims under the Fair Labor Standards Act (FLSA), 29 U.S.C.S. §§ 201-219, the court had supplemental jurisdiction pursuant to 28 U.S.C.S. § 1367(a) over the employee's claims under Vermont's Fair Employment Practices Act, 21 V.S.A. §§ 495-496, and Vermont's Workers' Compensation Law, 21 V.S.A. §§ 643b, 710 because those claims, though based on disability status and retaliation, were not totally unrelated to the FLSA claims, and adjudication of these state law claims was apt to require many of the same witnesses, much of the same evidence, and determination of many of the same facts. Connolly v. Smugglers' Notch Mgmt. Co., - F. Supp. 2d - (D. Vt. Nov. 5, 2009).

4. Prima facie case .

When plaintiff was terminated within several months of his claim for workers' compensation benefits and within weeks of his return to work from the injury, this temporal proximity between the adverse employment decision and the protected activity was sufficient under the burden-shifting analysis to meet his initial relatively light burden of establishing the causation portion of a prima facie case for workers'-compensation retaliation. Gauthier v. Keurig Green Mt., Inc., 200 Vt. 125, 129 A.3d 108 (2015).

To withstand a summary judgment on a claim that an employee was discriminated against for filing a workers' compensation claim, the employee must present a prima facie case of retaliatory discrimination showing (1) he was engaged in a protected activity, (2) his employer was aware of that activity, (3) he suffered adverse employment decisions, and (4) there was a causal connection between the protected activity and the adverse employment decision. Lowell v. International Business Machines Corp., 955 F. Supp. 300 (D. Vt. 1997).

5. Release.

In a workers' compensation retaliation case, remand was required for the trial court to address the effect of an agreement executed by plaintiff which contained a release. The state consistently and repeatedly argued that plaintiff waived any claims against the state based on his reclassification, and the trial court's failure to resolve this issue was fatal to the validity of the ensuing jury verdict because, for the most part, plaintiff's retaliation claim was grounded on actions taken by the state pursuant to the agreement, apart from which there was insufficient support for the verdict. Hall v. State, 192 Vt. 63, 54 A.3d 993 (2012).

6. Video surveillance.

One-day public video surveillance of plaintiff done in connection with plaintiff's workers' compensation claim could not, as a matter of law, support his retaliation claim. Such surveillance could be expected in response to a tip claiming fraud, regardless of the tip's source, and the court could not see how it would cause a reasonable person to forego a legitimate claim. Hall v. State, 192 Vt. 63, 54 A.3d 993 (2012).

State has the right and responsibility to use video surveillance techniques to prevent fraudulent workers' compensation claims. If any video surveillance in connection with a workers' compensation claim could form the sole basis for a retaliation claim, it could well have the effect of pressuring the state into abandoning or unnecessarily restricting one of its legitimate tools for rooting out fraud in the filing of workers' compensation claims. Hall v. State, 192 Vt. 63, 54 A.3d 993 (2012).

7. Legitimate nondiscriminatory reason.

When defendant in a workers' compensation retaliation case produced evidence that plaintiff violated its internet-use policy and had been involved in two other internal disciplinary proceedings in the past, including a previous warning for a violation of defendant's internet-use policy, defendant's proffered reason would permit the conclusion that plaintiff was terminated for a legitimate, non-discriminatory reason. Gauthier v. Keurig Green Mt., Inc., 200 Vt. 125, 129 A.3d 108 (2015).

8. Pretext.

In order to establish pretext in a workers' compensation retaliation case, the employee must call the employer's honesty or credibility into question by rebutting the proffered reason with facts from which a factfinder could reasonably conclude that the proffered reasons are unworthy of credence. The proffered reason that the employer honestly believes must, of course, be a legitimate, non-discriminatory reason for the challenged adverse employment action. Gauthier v. Keurig Green Mt., Inc., 200 Vt. 125, 129 A.3d 108 (2015).

With regard to his workers' compensation retaliation claim, plaintiff had not shown that defendant's terminating him for excessive internet usage was pretextual in that defendant did not honestly believe in its proffered reason, given that nothing suggested that another worker had used plaintiff's login credentials for an extended period of time or for accessing the internet, the evidence did not show that plaintiff could not have performed his job while using the internet as alleged, and there was no evidence that defendant lacked an honest belief as to the content of a usage report. Gauthier v. Keurig Green Mt., Inc., 200 Vt. 125, 129 A.3d 108 (2015).

§ 711. Workers' Compensation Administration Fund.

  1. The Workers' Compensation Administration Fund is created pursuant to 32 V.S.A. chapter 7, subchapter 5 to be expended by the Commissioner for the administration of the workers' compensation and occupational disease programs. The Fund shall consist of contributions from employers made at a rate of 1.4 percent of the direct calendar year premium for workers' compensation insurance, one percent of self-insured workers' compensation losses, and one percent of workers' compensation losses of corporations approved under this chapter. Disbursements from the Fund shall be on warrants drawn by the Commissioner of Finance and Management in anticipation of receipts authorized by this section.
  2. Annually, the General Assembly shall establish the rate of contribution for the direct calendar year premium for workers' compensation insurance. The rate shall equal the amount approved in the appropriations process for the program and the Department's projection of salary and benefit increases for that fiscal year, less the amount collected in the prior calendar year under subsection (a) of this section from self-insured workers' compensation losses and from corporations approved under this chapter, adjusted by any balance in the fund from the prior fiscal year, divided by the total direct calendar year premium for workers' compensation insurance for the prior year.

    Added 1993, No. 225 (Adj. Sess.), § 22; amended 1995, No. 186 (Adj. Sess.), § 3, eff. May 22, 1996; 1997, No. 59 , § 34, eff. June 30, 1997; 1997, No. 155 (Adj. Sess.), § 5; 2001, No. 143 (Adj. Sess.), § 3; 2003, No. 70 (Adj. Sess.), § 1, eff. April 1, 2004; 2007, No. 76 , § 22; 2007, No. 153 (Adj. Sess.), § 6; 2009, No. 47 , § 10; 2009, No. 134 (Adj. Sess.), § 28; 2011, No. 33 , § 5; 2017, No. 69 , § D.2, eff. June 8, 2017; 2017, No. 76 , § 4.

History

2003. In subsecs. (a) and (b), substituted "this chapter" for "chapter 9 of this title" to conform reference to V.S.A. style.

Revision note - In the second sentence, deleted "subchapter 1 of" preceding "chapter 9 of Title 21" to conform reference to the structure of 21 V.S.A. chapter 9.

Amendments--2017. Subsec. (a): Act Nos. 69 and 74 substituted "rate of 1.4 percent" for "rate of 1.75 percent" following "employers made at a" in the second sentence.

Amendments--2011. Subsec. (a): Substituted "workers'" for "worker's" preceding "compensation" in two places and "1.75" for "1.37" preceding "percent".

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "1.37 percent" for "0.96 percent" and "under this chapter" for "under the chapter 9 of this title" in the second sentence.

Amendments--2009. Subsec. (a): Substituted "0.96 percent" for "0.81 percent" in the second sentence.

Amendments--2007 (Adj. Sess.). Subsec. (a): Substituted "0.81 percent" for "0.42 percent" in the second sentence.

Amendments--2007. Subsec. (a): Substituted "0.42 percent" for "0.4 percent" in the second sentence.

Amendments--2003 (Adj. Sess.). Subsec. (a): Substituted "0.4" for "0.85" preceding "percent".

Amendments--2001 (Adj. Sess.) Subsec. (a): In the second sentence, substituted "0.85 percent" for "1.1 percent" and "chapter 9 of this title" for "chapter 9 of Title 21".

Amendments--1997 (Adj. Sess.). Subsec. (a): Substituted "1.1 percent" for "0.914 of one percent" in the second sentence.

Amendments--1997. Section amended generally.

Amendments--1995 (Adj. Sess.) Substituted "1998" for "1996" following "June 30" in the fourth sentence.

Workers' Compensation Rate of Contribution 2001, No. 65 , § 1, provides that: "For fiscal year 2002, the rate of contribution for the direct calendar year premium for workers' compensation insurance shall be the rate currently established in 21 V.S.A. § 711(a)."

Workers' Compensation Rate of Contribution. 2005, No. 72 , § 5, provides that: "For fiscal year 2006, after consideration of the formula in 21 V.S.A. § 711(b) and historical rate trends, the general assembly has established that the rate of contribution for the direct calendar year premium for workers' compensation insurance shall remain at the rate of 0.4 percent established in 21 V.S.A. § 711(a)."

Workers' Compensation Rate of Contribution. 2005, No. 202 (Adj. Sess.), § 7 provides: "For fiscal year 2007, after consideration of the formula in 21 V.S.A. § 711(b) and historical rate trends, the general assembly has established that the rate of contribution for the direct calendar year premium for workers' compensation insurance shall remain at the rate of 0.4 percent established in 21 V.S.A. § 711(a)."

Workers' Compensation Rate of Contribution. 2011, No. 128 (Adj. Sess.), § 3 provides: "Pursuant to 21 V.S.A. § 711(b), for fiscal year 2013, the general assembly has established that the rate of contribution for the direct calendar year premium for workers' compensation insurance shall remain at the rate of 1.75 percent established in 21 V.S.A. § 711(a)."

Workers' Compensation Rate of Contribution. 2013, No. 72 , § 29 provides: "Pursuant to 21 V.S.A. § 711(b), for fiscal year 2014, the General Assembly has established that the rate of contribution for the direct calendar year premium for workers' compensation insurance shall be set at the rate of 1.45 percent notwithstanding 21 V.S.A. § 711(a). The contribution rate for self-insured workers' compensation losses and workers' compensation losses of corporations approved under 21 V.S.A. chapter 9 shall remain at one percent."

Workers' Compensation Rate of Contribution. 2013, No. 191 (Adj. Sess.), § 7 provides: "For fiscal year 2015, after consideration of the formula in 21 V.S.A. § 711(b) and historical rate trends, the General Assembly has established that the rate of contribution for the direct calendar year premium for workers' compensation insurance shall remain at the rate of 1.45 percent established in 2013 Acts and Resolves No. 72, Sec. 29, notwithstanding 21 V.S.A. § 711(a). The contribution rate for self-insured workers' compensation losses and worker's compensation losses of corporations approved under 21 V.S.A. chapter 9 shall remain at one percent."

Workers' Compensation Rate of Contribution. 2015, No. 57 , § 25 provides: "For fiscal year 2016, after consideration of the formula in 21 V.S.A. § 711(b) and historical rate trends, the General Assembly has established that the rate of contribution for the direct calendar year premium for workers' compensation insurance shall be set at the rate of 1.45 percent established in 2014 Acts and Resolves No. 191, Sec. 7, notwithstanding 21 V.S.A. § 711(a). The contribution rate for self-insured workers' compensation losses and workers' compensation losses of corporations approved under 21 V.S.A. chapter 9 shall remain at one percent."

Worker's Compensation Rate of Contribution. 2015, No. 149 (Adj. Sess.), § 46 provides: "For fiscal year 2017, after consideration of the formula in 21 V.S.A. § 711(b) and historical rate trends, the General Assembly has established that the rate of contribution for the direct calendar year premium for workers' compensation insurance shall be set at the rate of 1.45 percent established in 2015 Acts and Resolves No. 57, Sec. 25, notwithstanding 21 V.S.A. § 711(a). The contribution rate for self-insured workers' compensation losses and workers' compensation losses of corporations approved under 21 V.S.A. chapter 9 shall remain at one percent."

Workers' compensation rate of contribution. 2021, No. 73 , § 16 provides: "For fiscal year 2022, after consideration of the formula in 21 V.S.A. § 711(b) and historical rate trends, the General Assembly determines that the rate of contribution for the direct calendar year premium for workers' compensation insurance shall remain at the rate of 1.4 percent. The contribution rate for self-insured workers' compensation losses and workers' compensation losses of corporations approved under 21 V.S.A. chapter 9 shall remain at one percent."

§ 712. Enforcement by Attorney General. Section 712 repealed effective July 1, 2026.

  1. Following the referral of a complaint by the Commissioner of Labor pursuant to the provisions of section 3 of this title, the Attorney General may investigate a complaint that an employer has committed a willful, substantial, or systemic violation of section 687 or 708 of this chapter by claiming that it is not an employer as defined pursuant to subdivision 601(3) of this chapter or that an individual is not a worker or employee as defined pursuant to subdivision 601(14) of this chapter and may enforce those provisions by restraining prohibited acts, seeking civil penalties, obtaining assurances of discontinuance, and conducting civil investigations in accordance with the procedures established in 9 V.S.A. §§ 2458 -2461 as though an employer that violates section 687 or 708 of this chapter by claiming that it is not an employer as defined pursuant to subdivision 601(3) of this chapter or that an individual is not a worker or employee as defined pursuant to subdivision 601(14) of this chapter is committing an unfair act in commerce. Any employer, employment agency, or labor organization complained against shall have the same rights and remedies as specified in 9 V.S.A. §§ 2458 -2461. The Superior Court may impose the same civil penalties and investigation costs and order other relief to the State of Vermont or an aggrieved employee for a violation of section 687 or 708 of this chapter and any related violations of the provisions of this chapter as they are authorized to impose or order under the provisions of 9 V.S.A. §§ 2458 and 2461 in an unfair act in commerce. In addition, the Superior Court may order restitution of wages or other benefits on behalf of an employee and may order reinstatement and other appropriate relief on behalf of an employee.
    1. The Attorney General shall share information and coordinate investigatory and enforcement resources with the Departments of Financial Regulation, of Labor, and of Taxes pursuant to the provisions of section 3 of this title. (b) (1)  The Attorney General shall share information and coordinate investigatory and enforcement resources with the Departments of Financial Regulation, of Labor, and of Taxes pursuant to the provisions of section 3 of this title.
    2. Upon receiving notice that the Attorney General has determined that an employer committed a violation of section 687 or 708 of this chapter by claiming that it was not an employer as defined pursuant to subdivision 601(3) of this chapter or that an individual was not a worker or employee as defined pursuant to subdivision 601(14) of this chapter, the Commissioners of Financial Regulation and of Taxes shall review whether the employer is in compliance with the insurance or tax laws that are under their jurisdiction.

      Added 2019, No. 85 (Adj. Sess.), § 1, eff. Feb. 20, 2020; repealed on July 1, 2026 by 2019, No. 85 (Adj. Sess.), § 11(b).

CHAPTER 11. COMPENSATION FOR OCCUPATIONAL DISEASES

Sec.

History

Short title. 1951, No. 180 , § 1, provided that this chapter shall be known as and may be referred to as "The Occupational Disease Law".

Severability of enactment. 1951, No. 180 , § 23, provided: "In case for any reason any paragraph or any provision of this act [this chapter] shall be questioned in any court of last resort, and shall be held by such court to be unconstitutional or invalid, the same shall not be held to effect any other paragraph or provision thereof."

Cross References

Cross references. Workers' compensation fraud, see 13 V.S.A. § 2024.

§§ 1001-1023. Repealed. 1999, No. 41, § 8(a)(1).

History

Former §§ 1001-1023. Former § 1001, relating to application of compensation for occupational diseases, was derived from 1951, No. 180 , § 2; and amended by 1971, No. 156 (Adj. Sess.), § 1.

Former § 1002, relating to definitions of occupational diseases, was derived from 1951, No. 180 , § 3; and amended by 1961, No. 234 , § 1, eff. July 24, 1961; 1971, No. 156 (Adj. Sess.), § 2.

Former § 1003, relating to compensation payable for falsely reporting an occupational disease, was derived from 1951, No. 180 , § 4.

Former § 1004, relating to date of disablement or injury, was derived from 1951, No. 180 , § 5; and amended by 1961, No. 234 , § 2, eff. July 24, 1961; 1981, No. 165 (Adj. Sess.), § 1.

Former § 1005, relating to maximum compensation for silicosis or asbestosis, was derived from 1951, No. 180 , § 7; and amended by 1963, No. 157 , § 1; 1967, No. 165 , § 1; and was previously repealed by 1977, No. 182 (Adj. Sess.), § 22, eff. May 3, 1978.

Former § 1006, relating to time limit compensation is payable for disablement or death caused by occupational diseases, was derived from 1951, No. 180 , § 8; and amended by 1961, No. 234 , § 8, eff. July 24, 1961; 1965, No. 87 , § 2; 1967, No. 165 , § 2.

Former § 1007, relating to limits for compensation and medical benefits paid for disability and death from silicosis or asbestosis, was derived from 1957, No. 118 ; 1951, No. 180 , § 9; and amended by 1961, No. 234 , § 3; 1963, No. 157 , § 2; 1967, No. 165 , § 3; and was previously repealed by 1977, No. 182 (Adj. Sess.), § 22, eff. May 3, 1978.

Former § 1008, relating to last employer liable for an occupational disease, was derived from 1951, No. 180 , § 10; and amended by 1977, No. 182 (Adj. Sess.), § 18, eff. May 3, 1978.

Former § 1009, relating to compensation payments for recurrence of injury, was derived from 1951, No. 180 , § 11.

Former § 1010, relating to employees submitting to medical examination when there is a hazard of silicosis or asbestosis, was derived from 1951, No. 180 , § 12; and amended by 1977, No. 182 (Adj. Sess.), § 19, eff. May 3, 1978.

Former § 1011, relating to employee being permitted to waive or limit compensation, was derived from 1951, No. 180 , § 13; and amended by 1963, No. 157 , § 3.

Former § 1012, relating to compensation for dependents after injury, was derived from 1951, No. 180 , § 14.

Former § 1013, relating to compensation claims, notice, action, limitations exceptions, was derived from 1951, No. 180 , § 15; and amended by 1961, No. 234 , § 4, eff. July 24, 1961.

Former § 1014, relating to judgment against employee after a suit has been brought to court, was derived from 1951, No. 180 , § 16.

Former § 1015, relating to form of notice and claim, was derived from 1951, No. 180 , § 17.

Former § 1016, relating to giving of notice and making of claim, was derived from 1951, No. 180 , § 18.

Former § 1017, relating to inapplicable provisions of Workers' Compensation Act, was derived from 1951, No. 180 , § 19; and amended by 1981, No. 165 (Adj. Sess.), § 1.

Former § 1018, relating to permitting an autopsy when claim is made for benefits for death, was derived from 1951, No. 180 , § 20.

Former § 1019, relating to compensation payable resulting from an occupational disease, was derived from 1951, No. 180 , § 21; and amended by 1961, No. 234 , §§ 5, 6, eff. July 24, 1961; 1965, No. 40 ; 1971, No. 156 (Adj. Sess.), § 3.

Former § 1020, relating to temporary disability benefits, was derived from 1955, No. 204 ; and amended by 1977, No. 182 (Adj. Sess.), § 20, eff. May 3, 1978; 1981, No. 165 (Adj. Sess.), § 1.

Former § 1021, relating to second injury fund, was derived from 1951, No. 180 § 22.

Former § 1022, relating to partial disability benefits, was derived from 1961, No. 234 § 7, eff. July 24, 1961.

Former § 1023, relating to applicability of restrictions upon benefits payable in cases of asbestosis and silicosis, was derived from 1961, No. 234 , § 7; and was previously repealed by 1977, No. 182 (Adj. Sess.), § 22, eff. May 3, 1978.

Transfer of provisions. 1999, No. 41 , § 8(c) provides that all diseases previously classified as occupational diseases under 21 V.S.A. chapter 11, Compensation for Occupational Diseases, shall be treated as occupational diseases under 21 V.S.A. chapter 9, Employer's Liability and Workers' Compensation.

Annotations From Former § 1002

1. Occupational disease.

Where workmen's compensation claimant's exposure over four to six weeks to paint and varnish fumes was unusual to his trade of carpentry, as the carpentry aspects of house-building were usually finished before the painters arrived, and in this case the builder was behind schedule and the painters arrived early, fume-induced acute bronchitis and myocardial infarction were not distinctively associated with or characteristic of claimant's occupation and did not constitute occupational diseases. Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 421 A.2d 1291 (1980).

Annotations From Former § 1010

1. Private examinations.

This section is not complied with by employer who requests his employee to be X-rayed as permitted by this section, but who then subverts the plain meaning of this section by causing such examination to be made privately so that results are withheld from Commissioner and employee. 1952-54 Op. Atty. Gen. 219.

Annotations From Former § 1019

Cited. Masterson v. Rutland Hospital, 129 Vt. 91, 271 A.2d 848 (1970), overruled on other grounds, Campbell v. Heinrich Savelberg, Inc.(1980) 139 Vt. 31, 421 A.2d 1291.

CHAPTER 12. EMPLOYEE LEASING COMPANIES

Sec.

§ 1031. Definitions.

As used in this chapter:

  1. "Applicant" means a person applying for a license or for a renewal of a license under this chapter.
  2. "Commissioner" means the Commissioner of Labor or the Commissioner's designee.
  3. "Client company" means a person who enters into an agreement with an employee leasing company to lease any or all of its regular employees.
  4. "Employee leasing agreement" means an agreement, executed between an employee leasing company and a client company, pursuant to which an employee leasing company provides one or more individuals to perform services for a client company on an ongoing basis.
  5. "Employee leasing company" or "leasing company" means a person engaged in the business of providing individuals to perform ongoing services for an indefinite time period for client companies pursuant to one or more employee leasing agreements executed between the leasing company and the client company. "Employee leasing company" does not include labor organizations.
  6. "Financial responsibility" means the current and expected future condition of financial solvency sufficient to support a reasonable expectation that an employee leasing company can successfully conduct its business without jeopardizing the interests of the employees leased to the client company or the public.
  7. "Licensee" means an employee leasing company licensed under this chapter.
  8. "Temporary help company" means a person who hires its own employees and provides them to another business entity as temporary full- or part-time personnel to provide services for a finite period of time in special or unusual situations such as employee absences, temporary skill shortages, seasonal workloads, and special work assignments and projects.

    Added 1995, No. 173 (Adj. Sess.), § 1; amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2017, No. 74 , § 44.

History

Amendments--2017. Substituted "As used in" for "For the purposes of" in the introductory paragraph and deleted "client company," preceding "client company or the public" in subdiv. (6).

Amendments--2005 (Adj. Sess.) Subdiv. (2): Substituted "commissioner of labor" for "commissioner of labor and industry".

§ 1032. Commissioner; duties; rules.

The Commissioner shall administer this chapter and, in consultation with the Commissioner of Financial Regulation, adopt rules to carry out the provisions of this chapter.

Added 1995, No. 173 (Adj. Sess.), § 1; amended 1995, No. 180 (Adj. Sess.), § 38(a); 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012; 2013, No. 34 , § 13.

History

Amendments--2011 (Adj. Sess.). Substituted "Commissioners of Financial Regulation" for "commissioner of banking, insurance, securities, and health care administration".

Amendments--1995 (Adj. Sess.) Substituted "banking, insurance, securities, and health care administration" for "banking, insurance, and securities".

2011 Statutory revision 2011, No. 78 (Adj. Sess.), § 2 provides: "The Legislative Council, in its statutory revision authority under 2 V.S.A. § 424, is directed to replace the term 'commissioner of banking, insurance, securities, and health care administration' in the Vermont Statutes Annotated wherever it appears with the term 'Commissioner of Financial Regulation'; and to replace the term 'department of banking, insurance, securities, and health care administration' wherever it appears with the term 'Department of Financial Regulation.'"

§ 1033. Licensure; requirements; application; fees.

  1. No person shall engage in the business of employee leasing in Vermont unless the person is granted a license by the Commissioner under this chapter. Only qualified applicants as determined by the Commissioner shall be licensed.
  2. An applicant may file an application for licensure with the Commissioner on a form required by the Commissioner accompanied by a one-time, nonrefundable application fee of $100.00 and a licensing fee of $1,000.00. The applicant shall also file the following, satisfactory to the Commissioner:
    1. A list of all the controlling persons of the applicant and an affidavit from each attesting to his or her good moral character and management competence.
    2. Documentation that the applicant maintains a place of business in this State and that the applicant is licensed, if required, in the applicant's state of domicile.
    3. Certification that the applicant does not conduct a temporary help business through the same entity as the employee leasing business.
    4. An agreement to:
      1. maintain separate records for each client company;
      2. file reports as required by law for each of its client companies; and
      3. pay unemployment contributions and workers' compensation premiums based on the experience rating of each client company, provided that, for workers' compensation premiums, the client company has sufficient workers' compensation premium volume to be experience rated, otherwise the workers' compensation premiums shall be paid the rate approved for an employer that cannot be experience rated.
    5. An acknowledgment of the applicant's joint and several liability with its client companies for protections required by or damages due under laws designed to protect the health, safety, or welfare of an individual leased to a client company.
    6. Evidence of financial responsibility in accordance with subsection 1035(a) of this title.
    7. Evidence that the applicant has deposited securities or posted a bond, in a manner and amount approved by the Commissioner to secure the performance of the applicant's obligations pursuant to subdivision (5) of this subsection. The amount of securities or bond shall be at least the minimum net worth required by subsection 1035(a) of this title. An employee leasing company shall not require a client company to contribute in any manner to payment of the securities or bond required under this subdivision. The Commissioner may waive the bonding or security requirement if the applicant demonstrates that it is accredited by a national accrediting entity that has been approved by the Commissioner.
    8. An agreement that the Commissioner may liquidate any securities or bond provided pursuant to subdivision (7) of this subsection upon default by the applicant in the payment of wages, benefits, workers' compensation premiums or awards, or unemployment compensation premiums as required by this chapter.
  3. A license under this chapter shall expire one year from the date shown on the license. At least 60 days before the expiration date of the license, a licensee shall file a renewal application accompanied by the licensing fee and documentation as required by subsection (b) of this section.
  4. The Commissioner may deny, suspend, or revoke the license of an employee leasing company for any violation of this chapter.
  5. Fees collected under this section shall be credited to a special fund established and managed pursuant to 32 V.S.A. chapter 7, subchapter 5 and shall be available to the Department of Labor to offset the cost of providing those services.

    Added 1995, No. 173 (Adj. Sess.), § 1; amended 1997, No. 59 , § 37, eff. June 30, 1997; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

2003. In subsec. (e), substituted "subchapter 5 of chapter 7 of Title 32" for "chapter 7, subchapter 5 of Title 32" to conform reference to V.S.A. style.

Amendments--2005 (Adj. Sess.) Subdiv. (e): Substituted "department of labor" for "department of labor and industry".

Amendments--1997 Subsection (e): Added.

§ 1034. Controlling person.

  1. Each controlling person of an applicant or licensee shall:
    1. be at least 18 years of age; and
    2. have a personal history of honesty, trustworthiness, and fairness and a reputation for fair dealings and respect for the rights of others and for the law.
  2. For the purposes of this chapter, "controlling person" means an individual who has the authority to direct the management or policies of an employee leasing company or who is employed, appointed, or authorized by an employee leasing company to enter into contractual relationships with client companies on the employee leasing company's behalf.

    Added 1995, No. 173 (Adj. Sess.), § 1.

§ 1035. Financial responsibility.

  1. Evidence of financial responsibility shall include an audited financial statement, prepared in accordance with generally accepted accounting principles, that demonstrates that the applicant has an adjusted net worth of at least $100,000.00 or five percent of liabilities, whichever is greater. The statement shall have been prepared within six months of the date of application by an independent certified public accountant licensed in this State.
  2. The Commissioner may audit a licensee's financial condition if the Commissioner determines that the licensee's financial responsibility is in question. The Commissioner may contract for the audit and charge the licensee a fee that shall not exceed the actual cost of performing the audit.
  3. Financial information submitted to the Commissioner by an applicant or licensee shall be confidential and shall not be available for public inspection. Nothing in this section shall be construed to restrict the Commissioner from sharing this information with the Attorney General, the Department of Financial Regulation, the Department of Labor, the Department of Taxes, the Secretary of State, or the U.S. Internal Revenue Service.

    Added 1995, No. 173 (Adj. Sess.), § 1; amended 1995, No. 180 (Adj. Sess.), § 38(a); 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012.

History

Amendments--2011 (Adj. Sess.). Subsec. (c): Substituted "Department of Financial Regulation" for "department of banking, insurance, securities, and health care administration".

Amendments--2005 (Adj. Sess.) Subsec. (c): Substituted "Department of Labor" for "department of employment and training".

Amendments--1995 (Adj. Sess.) Subsec. (c): Substituted "department of banking, insurance, securities, and health care administration" for "department of banking, insurance, and securities" in the second sentence.

2011 Statutory revision 2011, No. 78 (Adj. Sess.), § 2 provides: "The Legislative Council, in its statutory revision authority under 2 V.S.A. § 424, is directed to replace the term 'commissioner of banking, insurance, securities, and health care administration' in the Vermont Statutes Annotated wherever it appears with the term 'Commissioner of Financial Regulation'; and to replace the term 'department of banking, insurance, securities, and health care administration' wherever it appears with the term 'Department of Financial Regulation.'"

§ 1036. Employee leasing company; duties; deemed employer.

  1. A licensee shall:
    1. Register with the following within 10 days after licensure under this chapter:
      1. The Department of Labor.
      2. The Department of Taxes.
      3. The Secretary of State.
      4. The U.S. Internal Revenue Service.
    2. Make timely payment of workers' compensation premiums and unemployment compensation on all leased employees based on the experience rating of the client company to which the employees are leased.
    3. File all reports as required by this chapter and applicable law.
    4. Maintain financial responsibility and management competence.
    5. Provide notification of the employment arrangement to all employees leased pursuant to an employee leasing agreement within 10 days after executing the agreement.
    6. Keep any securities or bond in effect or retain accreditation, whichever was provided pursuant to subdivision 1033(b)(7) of this title during the period the license is valid.
  2. Except as provided in sections 1037 and 1038 of this title, an employee leasing company licensed under this chapter shall be deemed to be the employer for the payment of wages and other employment benefits due to leased employees pursuant to the employee leasing agreement. An employee leasing company shall implement an employee grievance system and provide to each leased employee a manual that outlines the terms and conditions of employment.

    Added 1995, No. 173 (Adj. Sess.), § 1; amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

2003. In subdiv. (a)(6), substituted "subdivision 1033(b)(7) of this title" for "section 1033(b)(7) of this title" to conform reference to V.S.A. style.

Amendments--2005 (Adj. Sess.) Subdiv. (a)(1)(A): Substituted "Department of Labor" for "department of employment and training".

§ 1037. Workers' compensation.

  1. Workers' compensation insurance premiums shall be determined and paid based on the experience rating of the client company for which the leased employee performs services, provided the client company has sufficient workers' compensation premium volume to be experience rated, otherwise the premiums shall be the rate approved for an employer that cannot be experience rated.
  2. Both the employee leasing company and its client company shall be entitled to the exclusivity of remedy provisions of section 622 of this title provided that workers' compensation coverage is in effect.
  3. A workers' compensation insurer shall notify the Commissioner and the client company no later than 30 days prior to any lapse or cancellation of workers' compensation coverage.

    Added 1995, No. 173 (Adj. Sess.), § 1.

§ 1038. Department of Labor.

  1. The Department of Labor shall charge unemployment compensation benefits against the experience rating record of the client company in accordance with the provisions of section 1325 of this title. Quarterly unemployment reports shall be filed and unemployment contributions shall be paid based on the client company's experience rating and under the client company's State employer account number. The Commissioner may require an employee leasing company to make weekly contribution payments. The Department shall notify both the client company and the employee leasing company of:
    1. Benefits charged against the experience rating of the client company.
    2. The contribution rate of the client company based on its status and experience as an employer.
  2. An employee leasing company shall register with the Department of Labor on a form required by the Commissioner of Labor and shall file the following with the Commissioner:
    1. A copy of each employee leasing agreement within 10 days after the agreement is executed and notice within 10 days after an agreement is terminated.
    2. Payroll records for each client company.
    3. On or before December 31 of each year, a list of each client company, including the client company's name, address, State employer account number, and federal employer identification number.

      Added 1995, No. 173 (Adj. Sess.), § 1; amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

2007. Changed title of section from "Department of Employment and Training" to "Department of Labor" in accordance with 2005, No. 103 (Adj. Sess.), § 3(3).

Amendments--2005 (Adj. Sess.) Substituted "Department of Labor" for "department of employment and training" in subsections (a) and (b), and "commissioner of labor" for "commissioner of employment and training" in subsection (b).

§ 1039. Employee benefits.

  1. An employee leasing company that offers employee benefit and welfare plans shall offer comparable benefits to each client company, but is not required to provide comparable benefits to leased employees of different client companies.
  2. An employee leasing company that provides health insurance benefits to its leased employees shall provide those benefits only pursuant to one of the following:
    1. An insurance policy issued under 8 V.S.A. chapter 107 by an insurer or entity authorized to do business by the Commissioner of Financial Regulation.
    2. A plan that has been qualified as a single employer plan under the provisions of the Employment Retirement Income Security Act (ERISA), as amended.
  3. An employee leasing company and the client company shall be jointly and severally liable for protection or damages provided under laws designed to protect the health, safety, and welfare of an employee.

    Added 1995, No. 173 (Adj. Sess.), § 1; amended 1995, No. 180 (Adj. Sess.), § 38(a); 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012.

History

Reference in text. The Employment Retirement Income Security Act (ERISA) referred to in subdiv. (b)(2) appears to be in reference to the Employee Retirement Income Security Act of 1974 codified as 29 U.S.C. § 1001 et seq.

Amendments--2011 (Adj. Sess.). Subdivision (b)(1): Substituted "Commissioner of Financial Regulation" for "commissioner of banking, insurance, securities, and health care administration".

Amendments--1995 (Adj. Sess.) Subdivision (b)(1): Substituted "commissioner of banking, insurance, securities, and health care administration" for "commissioner of banking, insurance, and securities".

2011 Statutory revision 2011, No. 78 (Adj. Sess.), § 2 provides: "The Legislative Council, in its statutory revision authority under 2 V.S.A. § 424, is directed to replace the term 'commissioner of banking, insurance, securities, and health care administration' in the Vermont Statutes Annotated wherever it appears with the term 'Commissioner of Financial Regulation'; and to replace the term 'department of banking, insurance, securities, and health care administration' wherever it appears with the term 'Department of Financial Regulation.'"

§ 1040. Collective bargaining; interference prohibited.

  1. For purposes of the collective bargaining process, including the right to organize employee units based upon specific work sites, an employee leasing company shall be bound by law and liable for any violations of a collective bargaining agreement covering any of its leased employees. An employee leasing company shall not reassign leased employees or take any other action for the purpose of interfering with the terms and conditions of any collective bargaining agreement or organizational activity.
  2. Nothing in this chapter shall be construed to relieve a client company of its obligations under any applicable law or to reduce or diminish any rights of leased employees to organize or collectively bargain.

    Added 1995, No. 173 (Adj. Sess.), § 1.

§ 1041. Prohibitions; penalty.

Any person who conducts the business of employee leasing or holds themselves out as an employee leasing company without being licensed under this chapter shall be fined not more than $15,000.00.

Added 1995, No. 173 (Adj. Sess.), § 1.

§ 1042. Unprofessional conduct.

Unprofessional conduct includes:

  1. Failure to maintain financial responsibility and management competence.
  2. Occupational advertising that is intended or tends to deceive the public.
  3. Failure to comply with substantial provisions of State or federal law governing the conduct of an employee leasing company.
  4. Conviction of a crime related to the conduct of the business of employee leasing by a controlling person of a licensee.

    Added 1995, No. 173 (Adj. Sess.), § 1.

§ 1043. Enforcement; appeals.

  1. The Commissioner may revoke, suspend, restrict, or place on probation the license of any employee leasing company, after a hearing, for a violation of any provision of this chapter or for a violation of any law relating to the conduct of the business of employee leasing. The Commissioner may charge the licensee the actual cost of any investigation undertaken at the direction of the Commissioner in response to any complaint filed against the licensee.
  2. A person may appeal an action taken by the Commissioner under this section to the Superior Court.

    Added 1995, No. 173 (Adj. Sess.), § 1.

CHAPTER 13. APPRENTICESHIP

Sec.

Cross References

Cross references. Vermont Student Apprenticeship Program, see 16 V.S.A. § 1601 et seq.

§ 1101. Apprenticeship Division and Council.

The Apprenticeship Division and the State Apprenticeship Council (Council) shall be located within the Department of Labor. The Commissioner of Labor shall supervise the work of the Division, and shall be the Chair of the Council. The Council shall consist of 12 members, four ex officio members and eight members who shall be appointed by the Governor. Of the ex officio members, one shall be the Commissioner of Labor or designee, one shall be the Commissioner of Public Safety or designee, one shall be the Secretary of Education or designee, and one shall be the Director of the Apprenticeship Division who shall act as secretary of the Council without vote. The Council shall be composed of persons familiar with apprenticeable occupations. Of the appointed members, three shall be individuals who represent employers, three shall be individuals who represent employee organizations, and two shall be members of the public. Appointment of the employer and the employee members shall be made for the term of three years except the employer and employee members first appointed shall be appointed for the term of one, two, and three years respectively. The Governor shall annually designate one member of the Council as chair. Each member of the Council who is not a salaried official or employee of the State shall be entitled to compensation and expenses as provided in 32 V.S.A. § 1010 .

Amended 1987, No. 166 (Adj. Sess.), eff. May 3, 1988; 1991, No. 204 (Adj. Sess.), § 10; 1995, No. 178 (Adj. Sess.), § 164b; 1997, No. 143 (Adj. Sess.), § 3; 2005, No. 8 , § 7, eff. April 25, 2005; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2005, No. 212 (Adj. Sess.), § 12, eff. May 29, 2006; 2009, No. 156 (Adj. Sess.), § E.401.2, eff. June 3, 2010; 2011, No. 162 (Adj. Sess.), § E.401.1; 2013, No. 92 (Adj. Sess.), § 264, eff. Feb. 14, 2014.

History

Source. V.S. 1947, § 8222. 1947, No. 160 , § 1. 1945, No. 203 , § 2.

Amendments--2013 (Adj. Sess.). Substituted "Apprenticeship Division and the State Apprenticeship Council (Council)" for "apprenticeship division and state apprenticeship council, hereinafter referred to as the 'council"' and "Secretary of Education" for "commissioner of education".

Amendments--2011 (Adj. Sess.). Inserted ", and shall be the chair of the council" following "division" at the end of the second sentence; substituted "12" for "10" and "eight" for "six" preceding "members" in the third sentence; inserted "or designee" following "labor" in the fourth sentence; added the present fifth sentence; substituted "appointed" for "appointive" preceding "members", "represent" for "on account of previous vocation, employment, occupation, or affiliation can be classed as" following "individuals who", ", three" for "and three" following "employers" and "represent employee organizations, and two shall be members of the public" for "on account of previous vocation, employment, occupation, or affiliation can be classed as employees" following "who" in the sixth sentence.

Amendments--2009 (Adj. Sess.) Substituted "10 members" for "11 members" and "four ex officio" for "five ex officio" in the third sentence and rewrote the fourth sentence.

Amendments--2005 (Adj. Sess.). Act No. 103 substituted "department of labor" for "department of employment and training" and "commissioner of labor" for "commissioner of employment and training" wherever they appeared throughout the section.

Act No. 212 amended section generally.

Amendments--2005. Substituted "public safety" for "labor and industry" in the fourth sentence and made minor changes in punctuation in the fifth sentence.

Amendments--1997 (Adj. Sess.). Revised the first and fourth sentences, and substituted "chair" for "chairman" at the end of the paragraph.

Amendments--1995 (Adj. Sess.) Substituted "employment and training" for "labor and industry" following "department of" in the first and fourth sentences and following "commissioner of" in the second and fourth sentences.

Amendments--1991 (Adj. Sess.). In the fourth sentence substituted "technical" for "vocational" preceding "education" and "jobs and training" for "employment service" following "Vermont".

Amendments--1987 (Adj. Sess.). In the fourth sentence, substituted "state director of the apprenticeship division within the department" for "deputy commissioner" preceding "of labor and industry".

§ 1102. Meetings, regulations.

The Council shall meet semiannually and as often as may be necessary in the opinion of the majority of the members. The Chair shall designate the time and place of all meetings. The Council shall establish minimum standards for apprenticeship and all on-the-job training. The Council shall also make provision for the registration and approval of apprenticeship and all on-the-job training programs and individual apprentice and all on the job training agreements. The Council may adopt rules relating to its policy as are necessary to carry out the intent and purposes of this chapter; may issue State certificates of completion of apprenticeship to apprentices who have completed their trade training under apprenticeship programs registered and approved by the Council; may issue certificates to on-the-job trainees upon completion of training, may utilize the services of any State or federal agency or department which may be of assistance in carrying out its duties and the purposes of this chapter.

Amended 1963, No. 85 , § 1, eff. May 10, 1963; 1997, No. 143 (Adj. Sess.), § 4.

History

Source. V.S. 1947, § 8223. 1947, No. 160 , § 2. 1945, No. 203 , § 3.

Amendments--1997 (Adj. Sess.). Substituted "chair" for "chairman" in the second sentence, hyphenated "on the job" throughout the paragraph, substituted "adopt" for "make such" and deleted "and regulations" after "rules" near the beginning of the last sentence.

Amendments--1963. Section amended generally.

§ 1103. Supplementary instruction.

  1. The Department of Labor shall provide for related and supplementary instruction for apprentices employed under apprenticeship programs registered and approved by the Council, and for all on-the-job trainees. To make certain there is statewide access to training opportunities, the Department shall ensure that instruction in the electrical and plumbing trades is offered at each regional CTE center, as defined by 16 V.S.A. § 1522(4) . If the Department enters into a single-source contract with an entity to provide apprenticeship training, the contract shall specify that access to programs must be available to all Vermont residents, at least through online courses.
  2. The Department of Labor may charge fees to the employers of apprentices registered in Vermont and to nonregistered individuals to help offset the cost of apprenticeship related instruction provided by the Department. An employer shall not charge any apprentice for any of the fees charged to the employer under this section, nor shall an employer reduce an employee's compensation in any manner in order to recover these fees from any apprentice. The fees shall be used, in conjunction with other approved funds, to provide classroom instruction primarily for Vermont registered apprentices. The Vermont Department of Labor may adopt rules to carry out this provision.

    Amended 1961, No. 186 ; 1963, No. 85 , § 2, eff. May 10, 1963; 1995, No. 47 , § 10, eff. April 20, 1995; 1997, No. 143 (Adj. Sess.), § 5; 2001, No. 50 , § 1, eff. June 12, 2001; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2009, No. 146 (Adj. Sess.), § G15, eff. June 1, 2010; 2013, No. 92 (Adj. Sess.), § 302, eff. Feb. 14, 2014; 2017, No. 74 , § 45.

History

Source. V.S. 1947, § 8224. 1947, No. 160 , § 3. 1945, No. 203 , § 4.

2014. Subsec. (a): Substituted "career technical center" for "technical center" in accordance with 2013, No. 92 (Adj. Sess.), § 302.

Amendments--2017. Subsec. (a): Substituted "CTE center" for "career technical center" following "each regional" in the second sentence.

Amendments--2009 (Adj. Sess.). Subsec. (a): Added the present second and third sentences.

Amendments--2005 (Adj. Sess.) Substituted "Department of Labor" for "department of employment and training" in subsections (a) and (b).

Amendments--2001. Subsec. (b): Rewrote the second sentence.

Amendments--1997 (Adj. Sess.). Substituted "employment and training" for "labor and industry" throughout the section and hyphenated "on the job" in subsec. (a).

Amendments--1995 Designated the existing provisions of the section as subsec. (a) and added subsec. (b).

Amendments--1963 Added "and for all on the job trainees" at the end of the section.

Amendments--1961 Substituted "department of industrial relations" for "state department of education" preceding "shall" and "provide" for "be responsible and make provision" thereafter and deleted "as may be" preceding "employed".

ANNOTATIONS

1. Payment for instruction.

Language of this section is sufficiently broad to include financial provision for instruction to apprentices under conditions specified, subject to availability of funds appropriated for such purpose. 1948-50 Op. Atty. Gen. 99.

§ 1104. Assistants.

The Commissioner of Labor, with the approval of the Governor, shall have power to employ and fix the compensation of such personnel of the Apprenticeship Division as the Commissioner may deem necessary to carry out the provisions of this chapter. The Commissioner shall also have authority to purchase such office equipment, supplies, printing, and field supplies as are deemed necessary to carry out the purposes of this chapter. The members of the Council shall serve without pay, but shall receive their necessary expenses incurred in attendance at meetings, to be paid on warrants issued by the Commissioner of Finance and Management on approval of the Commissioner of Labor.

Amended 1983, No. 195 (Adj. Sess.), § 5(b); 1995, No. 178 (Adj. Sess.), § 164c; 1997, No. 143 (Adj. Sess.), § 6; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Source. V.S. 1947, § 8225. 1947, No. 160 , § 4. 1945, No. 203 , § 5.

Revision note. Reference to "commissioner of finance and information support" changed to "commissioner of finance and management" in light of Executive Order No. 35-87 (No. 3-11), which provided for the abolition of the department of finance and information support and the transfer of the duties, responsibilities and authority of the commissioner of that entity to the commissioner of the department of finance and management as established by the order. By its own terms, Executive Order No. 35-87 (No. 3-11) took effect on July 1, 1987, pursuant to section 2002 of Title 3. For the text of Executive Order No. 35-87 (No. 3-11), see chapter 3 of Title 3 Appendix. Executive Order No. 35-87 (No. 3-11), which this note refers to, was revoked and rescinded by E.O.06-05 (No. 3-46).

Amendments--2005 (Adj. Sess.) Substituted "Commissioner of Labor" for "commissioner of employment and training" in the first and last sentences.

Amendments--1997 (Adj. Sess.). Substituted "are deemed" for "he deems" in the second sentence.

Amendments--1995 (Adj. Sess.) Substituted "employment and training" for "labor and industry" in the first and third sentences and made minor changes in phraseology in the first and second sentences.

Amendments--1983 (Adj. Sess.). Inserted "and information support" following "finance" in the last sentence.

§ 1105. Application of standards.

The standards established by the Council under section 1102 of this title shall apply only to a person, firm, corporation, employer, or organization of employers or of employees which voluntarily elects to comply with them.

History

Source. V.S. 1947, § 8226. 1945, No. 203 , § 6.

CHAPTER 14. YOUTH IN AGRICULTURE, NATURAL RESOURCES, AND FOOD PRODUCTION

Sec.

§ 1151. Legislative findings and purpose.

  1. The General Assembly finds that:
    1. Agriculture, natural resources, and food production play a central role in the economy and culture of Vermont.
    2. Farms and farm-based industries are experiencing an ever-increasing need for workers who are willing to work the hours involved in farming and who have the multiple skills necessary to handle successfully the multiple and varied responsibilities of farming.
    3. Farms have always provided the environment for youth to acquire workplace skills such as responsibility, creativity, and initiative and occupational skills ranging from plant and animal science to economics and to grow therefore into sought-after workers by a wide variety of employers.
    4. Programs such as the Farm Youth Corps have provided the infrastructure that is necessary to connect youth to careers in agriculture, natural resources, and food production.
    5. Programs that have provided youth with the opportunity to work on farms have declined due to reductions in federal funding.
  2. Therefore, it is the purpose of this chapter to create and support programs for youth that will engage them in agriculture, natural resources, and food production in order to:
    1. Provide them an opportunity to engage in work that provides them with hands-on learning and allows them to develop a strong work ethic and vital workplace and occupational skills that will be valuable in any career they might pursue.
    2. Encourage youth to pursue pathways to careers in agriculture, natural resources, and food production.
    3. Provide farmers with young short-term workers and the opportunity to mentor future, long-term employees.
    4. Ensure that youth are aware of the benefits of agriculture, natural resources, and food production to themselves and to Vermont.

      Added 2003, No. 122 (Adj. Sess.), § 164a.

§ 1152. Youth in Agriculture, Natural Resources, and Food Production Consortium; creation.

  1. There is created a Youth in Agriculture, Natural Resources, and Food Production Consortium of program providers in order that programs to build pathways to careers in agriculture, natural resources, and food production may be connected, developed, and supported in a coordinated manner. The Consortium shall comprise employees of the Department of Labor assigned by the Commissioner of Labor; employees of the Agency of Education assigned by the Secretary of Education; employees of the Agency of Agriculture, Food and Markets appointed by the Secretary of Agriculture, Food and Markets; employees of the Agency of Natural Resources appointed by the Secretary of Natural Resources; representatives of the Extension Service of the University of Vermont selected by the Service; and representatives from agriculture, food, and natural resources businesses appointed by the Secretary of Agriculture, Food and Markets.
  2. The consortium shall be attached to the Department of Labor for administrative support. It shall elect its own chair and meet as required to fulfill its obligations under this chapter.

    Added 2003, No. 122 (Adj. Sess.), § 164a; amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2013, No. 92 (Adj. Sess.), § 265, eff. Feb. 14, 2014.

History

Amendments--2013 (Adj. Sess.). Subsec. (a): Substituted "Agency of Education" for "department of education" and "Secretary of Education" for "commissioner of education".

Amendments--2005 (Adj. Sess.) Substituted "Department of Labor" for "department of employment and training" in subsecs. (a) and (b), and "Commissioner of Labor" for "commissioner of employment and training" in subsec. (a).

§ 1153. Youth in Agriculture, Natural Resources, and Food Production Consortium; powers and duties.

  1. The Consortium shall be charged with the oversight of the development and coordination of programs in agriculture, natural resources, and food production, and education to connect youths' experiences in agriculture, natural resources, and food production to their in-school learning and develop pathways for pursuing further education related to agriculture or natural resources. It shall seek to coordinate and connect programs around common standards, coordinate resources, provide a clearinghouse for information and technical assistance, establish a strong business and education partnership, identify missing components of the system, and oversee funds made available for the express purpose of implementing these pathways. It shall endeavor to sustain and expand programming in agriculture, natural resources, and food production on a statewide basis in order to affect middle and secondary school students in Vermont. The Consortium shall seek to ensure the effectiveness of all the programs in reaching large numbers of students, and in so far as possible, seek to provide programs in all regions of the State through a statewide system with uniform availability, eligibility, and funding requirements to make such opportunities available to all students.
  2. Among the programs to be reviewed and coordinated by the Consortium are projects that involve agriculture and the environment; programs within the elementary and middle school system that provide hands-on learning, such as "Ag in the Classroom" sponsored by the Agency of Agriculture, Food and Markets, and "Forest, Fields, and Futures" sponsored by UVM Extension; and secondary school programs in agriculture and natural resources-related areas in education; "Smokeyhouse" and other career technical education, agriculture, and natural resources programs offered by high schools and regional CTE centers. In addition, it shall review and coordinate programs such as the Youth Conservation Corps and the Farm Youth Corps of the Department of Labor, which has offered summer employment for students on farms, and other summer employment programs and alternative programs for in-school youth operated outside the public school funding system.
  3. [Repealed.]

    Added 2003, No. 122 (Adj. Sess.), § 164a; amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2013, No. 92 (Adj. Sess.), §§ 266, 302, eff. Feb. 14, 2014; 2017, No. 74 , §§ 46, 142.

History

2017. Substituted "UVM Extension" for "UVM Extension Service" to reflect name change.

2014. Subsec. (b): Act No. 92, § 302 substituted "career technical education" for "technical education" and "career technical centers" for "technical centers" in accordance with 2013, No. 92 (Adj. Sess.) § 302.

Amendments--2017. Subsec. (b): Substituted "regional CTE centers" for "career technical centers" following "high schools and" in the first sentence.

Subsec. (c): Repealed.

Subsec. (c): Substituted "Commissioner of Labor, the Secretary of Natural Resources, the Secretary of Education, and the House and Senate Committees on Agriculture and on Education" for "commissioner of labor, the secretary of agriculture, food and markets, the secretary of natural resources, the commissioner of education, and the house and senate committees on agriculture and on education".

Amendments--2005 (Adj. Sess.) Substituted "Department of Labor" for "department of employment and training" in subsec. (b), and "commissioner of labor" for "commissioner of employment and training" in subsec. (c).

CHAPTER 15. VERMONT EMPLOYMENT SERVICE

Sec.

Cross References

Cross references. Employment of people with disabilities, see § 497 et seq. of this title.

§ 1201. Acceptance by State.

The State of Vermont hereby accepts the provisions of the Act of Congress, approved June 6, 1933, entitled "An act to provide for the establishment of a national employment system and for cooperation with the states in the promotion of such system, and for other purposes."

History

Source. V.S. 1947, § 5337. 1935, No. 164 , § 1.

Reference in text. Act June 6, 1933, referred to in this section, is codified as 29 U.S.C. § 49 et seq.

§ 1202. Commissioner of Labor as agent.

The Commissioner of Labor is hereby designated and constituted the agent of the State of Vermont for the purposes of the Act, with full power to cooperate with all authorities of the United States having powers or duties under the Act and to do and perform all things necessary to secure to the State of Vermont the benefits of the Act in the promotion and maintenance of a system of public employment offices.

Amended 1959, No. 329 (Adj. Sess.), § 22; 1961, No. 210 , § 15, eff. July 11, 1961; 1981, No. 66 , § 5(b), eff. May 1, 1981; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Source. V.S. 1947, § 5338. 1947, No. 202 , § 10,281. 1935, No. 164 , § 2.

Reference in text. The act referred to in this section may be cited as the "Wagner-Peyser Act" of 1933, ch 49, § 16, 43 Stat. 113. Additional provisions added: P.L. 97-300, Title VI, § 601(h) 96 Stat. 1397; P.L. 100-628, Title VII, Subtitle B, § 712(a)(1), (2), 102 Stat. 3248; P.L. 105-220, Title III, Subtitle A, § 309(1), 112 Stat. 1082. The original act and additional provisions are codified as 29 U.S.C. § 49 et seq.

Amendments--2005 (Adj. Sess.) Substituted "Commissioner of Labor" for "commissioner of employment and training" in the section catchline, and in the text of the section.

Amendments--1981. Substituted "and training" for "security" following "commissioner of employment" in the catchline and in the text.

Amendments--1961. Substituted "commissioner of employment security" for "employment security board" in the catchline and preceding "is hereby designated" in the text.

Amendments--1959 (Adj. Sess.). Substituted "employment security board" for "unemployment compensation commission" in the catchline and preceding "is hereby designated" in the text.

§ 1203. Rules and regulations.

There is hereby created, under the direction of the Commissioner of Labor, a division to be known as the Vermont Employment Service Division, responsible for administering a system of public employment offices for the purpose of assisting employers to secure employees and workers to secure employment. The Commissioner is authorized and directed to establish such offices in such parts of the State as he or she deems necessary and to prescribe rules and regulations not inconsistent with any of the provisions of this chapter. The Commissioner shall appoint the director, assistants, and other employees of the Vermont Employment Service Division in accordance with the regulations prescribed by the Secretary of the U.S. Department of Labor.

Amended 1959, No. 329 (Adj. Sess.), § 22; 1961, No. 210 , § 15, eff. July 11, 1961; 1981, No. 66 , § 5(b), eff. May 1, 1981; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Source. V.S. 1947, § 5339. 1947, No. 202 , § 10,282. 1935, No. 164 , § 3.

Revision note. In the first and third sentences, substituted "Vermont Employment Service Division" for "Vermont state employment service" to conform references to § 1305 of this title.

In the third sentence, substituted "Secretary of the U.S. Department of Labor" for "director of the United States employment service" to conform reference to transfer of functions within federal government. See 29 U.S.C. § 49 et seq.

Amendments--2005 (Adj. Sess.) Substituted "Commissioner of Labor" for "commissioner of employment and training" in the first sentence.

Amendments--1981. Substituted "and training" for "security" following "commissioner of employment" in the first sentence.

Amendments--1961. Substituted "commissioner of employment security" for "employment security board" following "direction of the" in the first sentence, "commissioner" for "board" preceding "is authorized" in the second sentence and preceding "shall appoint" in the third sentence and "he" for "it" preceding "deems necessary" in the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "employment security board" for "unemployment compensation commission" following "direction of the" in the first sentence and "board" for "commission" preceding "is authorized" in the second sentence, and preceding "shall appoint" in the third sentence.

§ 1204. Receipt of funds.

The State Treasurer is hereby authorized to receive, on behalf of this State, all funds granted to it under authority of the Act.

History

Source. V.S. 1947, § 5340. 1947, No. 202 , § 10,283. 1935, No. 164 , § 4.

Reference in text. The act referred to in this section is Act June 6, 1933, which is codified as 29 U.S.C. § 49 et seq.

§ 1205. Contractual special services.

The Commissioner of Labor may enter into agreements to provide customized or special services that are beyond basic services required by federal statute, provided that such services do not interfere with the Department's statutory purposes and programs. The Department may charge for services provided under this section. Charges collected under this section shall be credited to separate special funds for each type of service agreement, and shall be available to the Department to offset the costs of each type of service.

Added 1997, No. 155 (Adj. Sess.), § 65; amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Amendments--2005 (Adj. Sess.) Substituted "Commissioner of Labor" for "commissioner of employment and training" in the first sentence.

Repeals. A former § 1205, relating to appropriations, was derived from V.S. 1947, § 5341; 1947, No. 202 , §§ 10, 284; 1935, No. 164 , § 5, and was repealed by 1961, No. 210 , § 17, eff. July 11, 1961.

§ 1206. Termination.

This chapter may be terminated by the Governor at any time, upon notice to the U.S. Department of Labor, when in his or her judgment the need for the same no longer exists. However, such notice of termination shall not be effective until the close of the U.S. fiscal year in which the notice is given.

History

Source. V.S. 1947, § 5342. 1935, No. 164 , § 6.

CHAPTER 16. DISPLACED HOMEMAKERS

Sec.

§ 1231. Definition.

"Displaced homemaker" means a person who:

  1. has worked in the home for a substantial number of years providing unpaid household services for family members; and
  2. has or is expected to have difficulty becoming gainfully employed outside the home, or is not gainfully employed or is under-employed; and
  3. has been dependent on the income of another family member and is no longer receiving that income; or has been dependent on government assistance and is no longer eligible for that assistance; or is receiving payments from a spouse or public agency for the care of minor children and the minor children are within two years of reaching majority.

    Added 1991, No. 44 , § 1.

§ 1232. Displaced homemaker programs and services.

  1. Programs to serve the needs of displaced homemakers may be developed in coordination with the Displaced Homemakers Policy Council and implemented by the Commissioner.  The programs may provide the following services:
    1. statewide outreach and advertising to inform displaced homemakers of services and programs available;
    2. job counseling and job placement;
    3. crisis intervention;
    4. peer counseling;
    5. life skills counseling;
    6. resource information and referrals to other State, federal, or private nonprofit programs which provide pre-vocational and vocational training, educational financial support, and other appropriate services; and
    7. any other service which helps displaced homemakers.
    1. The Commissioner, subject to the approval of the Joint Fiscal Committee, may accept federal grants or funds to assist the Department in providing displaced homemaker services and programs. (b) (1)  The Commissioner, subject to the approval of the Joint Fiscal Committee, may accept federal grants or funds to assist the Department in providing displaced homemaker services and programs.
    2. Upon receipt of such funds, the Commissioner shall make those funds available to carry out the goals of the Federal Displaced Homemakers Self Sufficiency Assistance Act, Public Law 101-554, which may include providing funds to existing or new services and programs for displaced homemakers including those mentioned in subsection (c) of this section.
  2. The Commissioner shall coordinate with existing services and other related State and federal organizations to ensure communication and cooperation among programs and to share efforts and resources for new services and programs for displaced homemakers, including the Secretary of Education, the Department for Children and Families, VISTA, the Vermont State Colleges, the University of Vermont, the Vermont Extension Service, and the Governor's Commission on Women.

    Added 1991, No. 44 , § 1; amended 1995, No. 188 (Adj. Sess.), § 6; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 53; 2013, No. 92 (Adj. Sess.), § 267, eff. Feb. 14, 2014.

History

Reference in text. The Federal Displaced Homemakers Self Sufficiency Assistance Act, Public Law 101-554, referred to in subdiv. (b)(2), is codified as 29 U.S.C. § 2301 et seq.

Revision note. In subsec. (c), deleted "are" preceding "not limited" to correct a grammatical error.

Amendments--2013 (Adj. Sess.). Subsec. (c): Substituted "the Secretary of Education, the Department for Children and Families, VISTA, the Vermont State Colleges, the University of Vermont, the Vermont Extension Service, and the Governor's Commission on Women" for "but not limited to: the department of education, the department for children and families, VISTA, the state colleges, the University of Vermont, the Vermont extension service, and the governor's commission on women".

Amendments--2005 (Adj. Sess.). Subsec. (c): Substituted "Department for Children and Families" for "department of prevention, assistance, transition, and health access".

Amendments--1999 (Adj. Sess.). Subsec. (c): Substituted "Department of Prevention, Assistance, Transition, and Health Access" for "department of social welfare".

Amendments--1995 (Adj. Sess.) Subdiv. (b)(1): Deleted "and the displaced homemaker policy council" following "committee".

Subsec. (c): Deleted "and the displaced homemaker policy council" following "commissioner".

§ 1233. Repealed. 1995, No. 188 (Adj. Sess.), § 4.

History

Former § 1233. Former § 1233, relating to displaced homemaker policy council, was derived from 1991, No. 44 , § 1.

CHAPTER 16A. DOMESTIC AND SEXUAL VIOLENCE SURVIVORS' TRANSITIONAL EMPLOYMENT PROGRAM

Sec.

§ 1251. Purpose.

The purpose of the domestic and sexual violence survivors' transitional employment program is to provide temporary, partial wage replacement to individuals who must leave employment, without good cause attributable to the employer, because of circumstances directly resulting from domestic violence, sexual assault, or stalking.

Added 2005, No. 49 , § 1.

§ 1252. Definitions.

For the purposes of this chapter:

  1. "Commissioner" means the Commissioner of Labor or the Commissioner's designee.
  2. "Department" means the Department of Labor.
  3. "Domestic and sexual violence" means domestic violence, sexual assault, or stalking as defined in 15 V.S.A. § 1151 .
  4. "Weekly payment" means an amount determined in accordance with section 1338 of this title.

    Added 2005, No. 49 , § 1; amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Amendments--2005 (Adj. Sess.) Subdiv. (1): Substituted "Commissioner of Labor" for "commissioner of employment and training".

Subdiv. (2): Substituted "Department of Labor" for "department of employment and training".

§ 1253. Eligibility.

The Commissioner shall make all determinations for eligibility under this chapter. An individual shall be eligible for up to 26 weekly payments when the Commissioner determines that the individual voluntarily left work due to circumstances directly resulting from domestic and sexual violence, provided the individual:

  1. Leaves employment for one of the following reasons:
    1. The individual reasonably fears that the domestic and sexual violence will continue at or en route to or from the place of employment.
    2. The individual intends to relocate in order to avoid future domestic and sexual violence against the individual or a member of the individual's family.
    3. The individual reasonably believes that leaving the employment is necessary for the safety of the individual or a member of the individual's family.
    4. The individual is physically or emotionally unable to work as a result of experiencing domestic or sexual violence as certified by a medical professional. The certification shall be reviewed by the Commissioner every six weeks and may be renewed until the individual is able to work or the benefits are exhausted.
  2. Complies with all the following:
    1. Prior to leaving employment has pursued reasonable alternatives to leaving the employment, which may include seeking a protection order, relocating to a secure place, or seeking reasonable accommodation from the employer, such as a transfer or different assignment. Failure to pursue reasonable alternatives may be excused if the individual establishes that pursuit of alternatives is likely to:
      1. be futile;
      2. increase the risk of future incidents of domestic and sexual violence;
      3. not adequately address the specific circumstances that led to the individual's decision to separate from employment.
    2. Provides the Department with satisfactory documentation of the domestic and sexual violence. The documentation may include a sworn statement from the individual attesting to the abuse, law enforcement or court records, or other documentation from an attorney or legal advisor, member of the clergy, or health care provider, as defined in 18 V.S.A. § 9432(9) . Information relating to the domestic and sexual violence, including the claimant's statement and corroborating evidence, provided to the Department shall not be disclosed by the Department unless the claimant has signed a consent to disclose form. In the event the Department is legally required to release this information without consent by the claimant, the Department shall notify the claimant at the time the notice or request for release of information is received by the Department and prior to releasing the requested information.
    3. Has been found ineligible for unemployment solely on the basis of the separation from employment.

      Added 2005, No. 49 , § 1; amended 2013, No. 72 , § 35d; 2017, No. 74 , § 47.

History

2015. In subdiv. (2)(B), substituted "18 V.S.A. § 9432(9)" for "18 V.S.A. § 9432(8)" to correct cross-reference.

Amendments--2017. Subdiv. (1)(B): Substituted "against" for "of" following "domestic and sexual violence".

Amendments--2013 Subdiv. (1)(D): Added.

§ 1254. Conditions.

An individual shall be eligible to receive payments with respect to any week, only if the Commissioner finds that the individual complies with all of the following requirements:

  1. files a claim certifying that he or she did not work during the week;
  2. is not eligible for unemployment compensation benefits; and
  3. is working with the Department to determine work readiness and taking reasonable steps as determined by the Commissioner to become employed.

    Added 2005, No. 49 , § 1; amended 2013, No. 72 , § 35e.

History

Amendments--2013 Added "and" following "benefits" in subdiv. (2) and rewrote subdiv. (3).

§ 1255. Procedures.

  1. The Commissioner or designee shall review all claims for payment and shall promptly provide written notification to the individual of any claim that is denied and the reasons for the denial.
  2. Within 30 days after receipt of a denial, the individual may appeal the determination to the Commissioner by requesting a review of the decision. On appeal to the Commissioner, the individual may provide supplementary evidence to the record. The Commissioner shall review the record within seven working days after the notice of the appeal is filed and promptly notify the individual in writing of the Commissioner's decision. The decision of the Commissioner shall become final unless an appeal to the Supreme Court is taken within 30 days of the date of the Commissioner's decision.

    Added 2005, No. 49 , § 1; amended 2013, No. 72 , § 35f.

History

Amendments--2013 Added "or designee" following "Commissioner" in subsec. (a), and added "by requesting a review of the decision" following "Commissioner" in the first sentence and added the second sentence in subsec. (b).

CHAPTER 17. UNEMPLOYMENT COMPENSATION

History

Citation. V.S. 1947, § 5418, provided: "This chapter shall be known and may be cited as the 'Unemployment Compensation Law'."

Application of chapter to personal care attendants. 1995, No. 178 (Adj. Sess.), § 154, as amended by 1997, No. 2 , § 44, provide in part that personal care attendants shall not be construed as State employees except for purposes of this chapter.

Continued eligibility for Pandemic Emergency Unemployment Compensation; delay of subsequent benefit year. 2021, No. 5 , § 1 provides: "(a) Notwithstanding any provision of 21 V.S.A. chapter 17 to the contrary, an individual shall be eligible to receive or to continue to receive Pandemic Emergency Unemployment Compensation benefits in lieu of regular unemployment insurance benefits if:

"(1) the individual was determined to be eligible for Pandemic Emergency Unemployment Compensation during a benefit year that expired after December 27, 2020;

"(2) the individual has remaining entitlement to Pandemic Emergency Unemployment Compensation benefits with respect to the expired benefit year;

"(3) the individual would qualify pursuant to 21 V.S.A. chapter 17 for regular unemployment insurance benefits in a new benefit year; and

"(4) the weekly benefit amount for regular unemployment insurance benefits in the new benefit year would be at least $25.00 less than the weekly benefit amount payable on the individual's Pandemic Emergency Unemployment Compensation claim in the prior benefit year.

"(b)(1) The new benefit year of an individual who is determined to be eligible to receive or to continue receiving Pandemic Emergency Unemployment Compensation benefits pursuant to subsection (a) of this section shall not begin until after the individual has exhausted his or her eligibility for Pandemic Emergency Unemployment Compensation benefits.

"(2) The individual's weekly benefit amount for the new benefit year shall be determined based on the wages that would have been in the individual's base period if the beginning of the new benefit year had not been deferred pursuant to this section."

Retroactive effect of 2021, No. 5 , § 1 note. 2021, No. 5 , § 2 provides that § 1 of that act shall take effect retroactively on January 1, 2021.

Cross References

Cross references. Extended benefits program, see § 1421 et seq. of this title.

Short-time compensation program, see § 1451 et seq. of this title.

ANNOTATIONS

Analysis

1. Construction.

This chapter must be construed liberally in favor of claimants to remove economic disabilities and distress resulting from involuntary unemployment, and to assist those workers who become jobless for reasons beyond their control, and should not exclude a claimant unless such an exclusion is clearly intended by law. Howard v. Department of Employment & Training, 153 Vt. 614, 572 A.2d 931 (1990).

The Supreme Court is not free to enlarge the scope of this chapter by an unwarranted interpretation of statutory language, nor is it at liberty to read into it provisions which the legislature did not see fit to incorporate. Littlefield v. Department of Employment & Training, 145 Vt. 247, 487 A.2d 507 (1984).

This chapter, having benevolent objectives, is remedial and must be given liberal construction; no claimant should be excluded unless the law clearly intends such an exclusion. Jones v. Department of Employment Security, 140 Vt. 552, 442 A.2d 463 (1982).

As unemployment compensation is remedial legislation, no person shall be excluded from its benefits unless the law demonstrates an intent to make the exclusion. Anthony Adams AIA Architect v. Department of Employment Security, 139 Vt. 413, 430 A.2d 446 (1981).

This chapter is designed as remedial legislation, and as such is to be construed in accordance with its express goal of removing economic disabilities, and no person, therefore, should be excluded from benefits unless the chapter itself reveals a clear intention to make such an exclusion. Jenkins v. Department of Employment Security, 135 Vt. 210, 373 A.2d 533 (1977).

This chapter, as remedial legislation, is to be construed liberally in favor of a claimant. Grenafege v. Department of Employment Security, 134 Vt. 288, 357 A.2d 118 (1976); Littlefield v. Department of Employment & Training, 145 Vt. 247, 487 A.2d 507 (1984).

Since this chapter is remedial legislation, a claimant should not be excluded from its provisions unless such an exclusion is clearly intended by law. Wallace v. Department of Employment Security, 134 Vt. 513, 365 A.2d 517 (1976); Donahue v. Department of Employment Security, 142 Vt. 351, 454 A.2d 1244 (1982); Littlefield v. Department of Employment & Training, 145 Vt. 247, 487 A.2d 507 (1984).

As remedial legislation, this chapter is to be interpreted in line with its benevolent objectives; therefore, no claimant should be excluded from its provisions unless the law clearly intends such exclusion. Nolan v. Davidson, 134 Vt. 295, 357 A.2d 129 (1976); Porter v. Department of Employment Security, 139 Vt. 405, 430 A.2d 450 (1981).

The Supreme Court is not at liberty to read into this chapter provisions which the legislature did not see fit to incorporate, nor may it enlarge the scope of its provisions by an unwarranted interpretation of the language used. Nurmi v. Vermont Employment Security Board, 124 Vt. 42, 197 A.2d 483 (1963), overruled on other grounds, Shufelt v. Department of Employment & Training (1987) 148 Vt. 163, 531 A.2d 894.

2. Purpose.

The underlying purposes of this chapter are to remove economic disabilities and distress resulting from involuntary unemployment, and to assist those workers who become jobless for reasons beyond their control. Littlefield v. Department of Employment & Training, 145 Vt. 247, 487 A.2d 507 (1984).

This chapter was intended to aid those whose joblessness is involuntary. Webster v. Department of Employment & Training, 141 Vt. 591, 451 A.2d 1104 (1982).

The general purpose of this chapter is to alleviate the economic disability and distress which results from involuntary unemployment; therefore, no person should be excluded from its benefits unless this chapter itself, in so many words, has demonstrated an intent to create such an exclusion. Riddel v. Department of Employment Security, 140 Vt. 82, 436 A.2d 1086 (1981).

The underlying purpose of this chapter is to remove the economic disabilities resulting from involuntary unemployment. In re Potvin, 132 Vt. 14, 313 A.2d 25 (1973).

The standards of this chapter must be applied consistent with its purpose of removing economic disabilities and distress resulting from involuntary unemployment. In re Platt, 130 Vt. 329, 292 A.2d 822 (1972).

The purpose of this chapter is to compensate for lack of appropriate job vacancies, thereby relieving distress resulting from unemployment and subsequent economic insecurity. Nurmi v. Vermont Employment Security Board, 124 Vt. 42, 197 A.2d 483 (1963), overruled on other grounds, Shufelt v. Department of Employment & Training (1987) 148 Vt. 163, 531 A.2d 894.

This chapter is intended to assist unemployed persons who, under the limitations and conditions imposed by the legislature, are entitled to its benefits. Nurmi v. Vermont Employment Security Board, 124 Vt. 42, 197 A.2d 483 (1963), overruled on other grounds, Shufelt v. Department of Employment & Training (1987) 148 Vt. 163, 531 A.2d 894.

It is not the purpose of this chapter to provide sick benefits nor to compensate those who cease working because of illness. Willard v. Vermont Unemployment Compensation Commission, 122 Vt. 398, 173 A.2d 843 (1961).

3. Disbursement of funds.

Disbursement of unemployment compensation funds can be made only within the limits imposed by this chapter and a claim must be justifiable under this chapter. In re Platt, 130 Vt. 329, 292 A.2d 822 (1972).

While this chapter must be given a liberal construction to subserve its beneficent social policy, it is equally important that it not be administered or construed in a manner dissipative of monies not intended by the Legislature to be disbursed without satisfaction of specific prerequisites. In re Moore, 128 Vt. 581, 269 A.2d 853 (1970).

4. Due process.

Due process requirements of the Fourteenth Amendment apply to the granting or denying of unemployment benefits, and protect the rights of the employer along with those of the claimant. City of Burlington v. Department of Employment & Training, 148 Vt. 151, 530 A.2d 573 (1987).

Subchapter 1. General Benefits

History

Revision note. The heading and designation for subchapter 1 of this chapter were added in light of the enactment of subchapter 2 in order to conform the organization of the chapter to the general organizational scheme of V.S.A.

§ 1301. Definitions.

The following words and phrases, as used in this chapter, shall have the following meanings unless the context clearly requires otherwise:

  1. "Benefits" and "compensation" means the money payments payable to an individual, as provided in this chapter, with respect to his or her unemployment.
  2. "Commissioner" means the Commissioner of Labor established by this chapter, or his or her authorized representative.
  3. "Contributions" means the money payments to the State Unemployment Compensation Fund required by this chapter.
  4. "Employing unit" means any individual or type of organization, including any partnership, association, labor organization as defined in section 2(5) of the National Labor Relations Act, trust, estate, joint stock company, insurance company, or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee, or successor thereof, or the legal representative of a deceased person, any federal, state, or local governmental entity, which has had in its employ since January 1, 1936, one or more individuals performing services for it within this State. All individuals performing services within this State for any employing unit which maintains two or more separate establishments within this State shall be deemed to be employed by a single employing unit for all the purposes of this chapter.
  5. "Employer" includes:
    1. Any employing unit which, after December 31, 1971 in any calendar quarter in either the current or preceding calendar year paid for service in employment, as hereinafter defined, wages of $1,500.00 or more, or for some portion of a day in each of 20 different calendar weeks, whether or not such weeks were consecutive, in either the current or the preceding calendar year, had in employment, as hereinafter defined, at least one individual (irrespective of whether the same individual was in employment in each such day).  When an employing unit described in either this subdivision or subdivision (5)(B) of this section, becomes an employer within any calendar year, it shall be subject to this chapter for the whole of such calendar year.
      1. Any employing unit for which service in employment for a religious, charitable, educational, or other organization as defined in subdivision (6)(A)(ix) of this section is performed after December 31, 1971; except as provided in subdivision (5)(C) of this section. (B) (i) Any employing unit for which service in employment for a religious, charitable, educational, or other organization as defined in subdivision (6)(A)(ix) of this section is performed after December 31, 1971; except as provided in subdivision (5)(C) of this section.
      2. Any employing unit for which service in employment for the State and any of its instrumentalities, for a hospital or an institution of higher education as defined in subdivision (6)(A)(x)(I) of this section is performed after December 31, 1971; except as provided in subdivision (5)(C) of this section.
      3. Any employing unit for which service in employment for the State or any political subdivision thereof as defined in subdivision (6)(A)(x)(II) of this section is performed after December 31, 1977; except as provided in subdivision (5)(C) of this section.
      4. Any employing unit for which agricultural labor as described in subdivision (6)(A)(vii)(I) of this section is performed after December 31, 1977.
      5. Any employing unit for which domestic service in employment as described in subdivision (6)(A)(viii) is performed after December 31, 1977.
    2. An employing unit as described in subdivisions (5)(A) and (B) of this section except:
      1. In determining whether or not an employing unit for which service other than domestic service is also performed is an employer under this subdivision, the wages earned or the employment of an employee performing domestic service as described in subdivision (5)(B)(v) of this section after December 31, 1977, shall not be taken into account unless the total cash remuneration paid in any calendar quarter for domestic services is $1,000.00 or more.
      2. In determining whether or not an employing unit for which service other than agricultural labor is also performed is an employer under this subdivision, the wages earned or the employment of an employee performing service in agricultural labor after December 31, 1977 shall not be taken into account unless the agricultural labor is in accordance with subdivision (6)(A)(vii)(I) of this section.  If an employing unit is determined an employer of agricultural labor, such employing unit shall be determined an employer for purposes of subdivision (5)(A) of this section.
    3. Any individual or employing unit which acquired the organization, trade, or business of another which at the time of such acquisition was an employer subject to this chapter.
      1. Any employing unit that filed with and had approved by the Commissioner, on the proper forms prescribed and supplied by the Commissioner, its written election to become fully subject to this chapter for not less than two calendar years. Such employing unit, not otherwise subject to this chapter, that files with the Commissioner its written election to become an employer subject to this chapter for not less than two calendar years, shall, with the written approval of such election by the Commissioner, become an employer subject to this chapter to the same extent as all other employers, as of the date stated in the approval. (E) (i) Any employing unit that filed with and had approved by the Commissioner, on the proper forms prescribed and supplied by the Commissioner, its written election to become fully subject to this chapter for not less than two calendar years. Such employing unit, not otherwise subject to this chapter, that files with the Commissioner its written election to become an employer subject to this chapter for not less than two calendar years, shall, with the written approval of such election by the Commissioner, become an employer subject to this chapter to the same extent as all other employers, as of the date stated in the approval.
      2. Any employing unit for which services that are excluded from the term "employment" by subdivisions (6)(A)(ix) and (6)(C)(i) and (ii) of this section are performed may, by election and approval, elect that all services performed by individuals in its employ, in one or more establishments or places of business, shall be deemed to constitute employment for all the purposes of this chapter for not less than two calendar years. Upon the written approval of such election by the Commissioner such services shall be deemed to constitute employment subject to this chapter from the date stated in the approval.
      3. Any such employing unit may cease to be subject under either subdivision (5)(E)(i) or (ii) of this section, as of January 1, of any calendar year subsequent to such two calendar years, only if at least 30 days prior to such first day of January it has filed with the Commissioner a written notice of its intention to cancel such election but this requirement may be waived by the Commissioner for good cause.
    4. Any employing unit which acquires a part of the organization, trade, or business of another, which part, if a separate organization, trade, or business, would have been an employer.  Any employing unit which acquires the organization, trade, or business, or acquires substantially all the assets of another employing unit, if the employment record of such acquiring employing unit subsequent to such an acquisition, together with the employment record of the acquired unit prior to such acquisition, both within the same calendar year, would be sufficient to constitute an employing unit an "employer."
    5. Any employing unit not an employer by reason of any other provision of this subdivision for which, within either the current or preceding calendar year, service is or was performed with respect to which such employing unit is liable for any federal tax against which credit may be taken for contributions required to be paid into a state unemployment fund; or which, as a condition for approval of this chapter for full tax credit against the tax imposed by the Federal Unemployment Tax Act, is required, pursuant to such act, to be an "employer" under this chapter.
      1. "Employment," subject to the other provisions of this subdivision (6), means service within the jurisdiction of this State, performed prior to January 1, 1978, which was employment as defined in this subdivision prior to such date and, subject to the other provisions of this subdivision, service performed after December 31, 1977, by an employee, as defined in subsections 3306(i) and (o) of the Federal Unemployment Tax Act, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, expressed or implied.  Services partly within and partly without this State may by election as hereinbefore provided be treated as if wholly within the jurisdiction of this State.  And whenever an employing unit shall have elected to come under the provisions of a similar act of a state where a part of the services of an employee are performed, the Commissioner, upon his or her approval of said election as to any such employee, may treat the services covered by said approved election as having been performed wholly without the jurisdiction of this State.
      2. The term "employment" shall include an individual's entire service, performed within, or both within and without, this State if the service is localized in this State.  Service shall be deemed to be localized within a state if:
        1. the service is performed entirely within such state; or
        2. the service is performed both within and without such state but the service performed without such state is incidental to the individual's service within the state; for example, is temporary or transitory in nature or consists of isolated transactions.
      3. The term "employment" shall include an individual's entire service, performed within, or both within and outside, this State if the service is not localized in any state but some of the service is performed in this State and:
        1. the individual's base of operations is in this State; or
        2. if there is no base of operations, then the place from which such service is directed or controlled is in this State; or
        3. the individual's base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, but the individual's residence is in this State.
      4. The term "employment" shall include an individual's service wherever performed within the United States, the Virgin Islands, or Canada, if:
        1. such service is not covered under the unemployment compensation law of any other state, the Virgin Islands, or Canada; and
        2. the place from which the service is directed or controlled is in this State.
      5. The term "employment" shall include the service of an individual who is a citizen of the United States, performed outside the United States after December 31, 1971 (except in Canada) or after December 31, 1977 in the case of the Virgin Islands in the employ of an American employer (other than service which is deemed "employment" under the provisions of subdivisions (6)(A)(ii), (iii), or (iv) of this section or the parallel provisions of another state's law), if:
        1. the employer's principal place of business in the United States is located in this State; or
        2. the employer has no place of business in the United States, but the employer is an individual who is a resident of this State; or the employer is a corporation which is organized under the laws of this State; or the employer is a partnership or a trust and the number of the partners or trustees who are residents of this State is greater than the number who are residents of any one other state; or
        3. none of the criteria of subdivisions (6)(A)(v)(I) and (II) of this subdivision is met but the employer has elected coverage in this State or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits, based on such service under the law of this State.
        4. an "American employer," for purposes of this subdivision means a person who is:
          1. an individual who is a resident of the United States; or
          2. a partnership if two-thirds or more of the partners are residents of the United States; or
          3. a trust, if all of the trustees are residents of the United States; or
          4. a corporation organized under the law of the United States or of any state.
      6. The term "employment" shall also include all service performed after July 1, 1946 by an officer or member of the crew of an American vessel on or in connection with such vessel, provided that the operating office, from which the operations of such vessel operating on navigable waters within or within and without the United States is ordinarily and regularly supervised, managed, directed, and controlled, is within this State.
      7. The term "employment" shall also include all service performed after December 31, 1977, by an individual in agricultural labor as defined in subdivision (6)(C)(i)(I) of this section when:
        1. such service is performed for a person who:
          1. during any calendar quarter in either the current or the preceding calendar year paid remuneration in cash of $20,000.00 or more to individuals employed in agricultural labor, not taking into account service in agricultural labor performed before January 1, 1980, by an alien referred to in subdivision (6)(A)(vii)(II) of this section; or
          2. for some portion of a day in each of 20 different calendar weeks, whether or not such weeks were consecutive, in either the current or the preceding calendar year, employed in agricultural labor (not taking into account service in agricultural labor performed before January 1, 1980, by an alien referred to in subdivision (6)(A)(vii)(II) of this section) 10 or more individuals, regardless of whether they were employed at the same moment of time.
        2. such service is not performed in agricultural labor if performed before January 1, 1980, or after December 31, 1986, by an individual who is an alien admitted to the United States to perform service in agricultural labor pursuant to sections 214(c) and 101(a)(15)(H) of the Immigration and Nationality Act, provided, that if section 3306 in the Federal Unemployment Tax Act is amended so as to include such service in the definition of employment in agricultural labor beginning on or after January 1, 1988, then such service shall be employment in agricultural labor under this chapter.
        3. for the purposes of this subdivision any individual who is a member of a crew furnished by a crew leader to perform service in agricultural labor for any other person shall be treated as an employee of such crew leader:
          1. if such crew leader holds a valid certificate of registration under the Farm Labor Contractor Registration Act of 1963; or substantially all the members of such crew operate or maintain tractors, mechanized harvesting or cropdusting equipment, or any other mechanized equipment, which is provided by such crew leader; and
          2. if the individual is not an employee of such other person within the meaning of subdivision (6)(A) of this section.
        4. for the purposes of this subdivision (vii), in the case of any individual who is furnished by a crew leader to perform service in agricultural labor for any other person and who is not treated as an employee of such crew leader under subdivision (6)(A)(vii)(III) of this section:
          1. the other person and not the crew leader shall be treated as the employer of such individual; and
          2. the other person shall be treated as having paid cash remuneration to such individual in an amount equal to the amount of cash remuneration paid to such individual by the crew leader (either on the crew leader's own behalf or on behalf of such other person) for the service in agricultural labor performed for such other person.
        5. for the purposes of this subdivision (vii) the term "crew leader" means an individual who:
          1. furnishes individuals to perform service in agricultural labor for any other person;
          2. pays (either on the crew leader's own behalf or on behalf of such other persons) the individuals so furnished by the crew leader for the service in agricultural labor performed by them; and
          3. has not entered into a written agreement with such other person under which such individual is designated as an employee of such other person.
      8. The term "employment" shall also include domestic service as used in subdivision (6)(C)(ii) of this section after December 31, 1977, in a private home, in a local college club or local chapter of a college fraternity or sorority, performed for a person who paid cash remuneration of $1,000.00 or more in any calendar quarter after December 31, 1977, in the current calendar year or the preceding calendar year to individuals employed in such domestic service.
      9. The term "employment" shall also include service for any employing unit which is performed after December 31, 1971 by an individual in the employ of a religious, charitable, educational, or other organization but only if:
        1. the service is excluded from "employment" as defined in the Federal Unemployment Tax Act solely by reason of section 3306(c)(8) of that act; and
        2. the organization had four or more individuals in employment for some portion of a day in each of 20 different weeks, whether or not such weeks were consecutive, within either the current or preceding calendar year, regardless of whether they were employed at the same moment of time.
        1. The term "employment" shall also include service for any employing unit which is performed after December 31, 1971 by an individual in the employ of this State or any of its instrumentalities, or in the employ of this State and one or more other states or their instrumentalities, for a hospital or institution of higher education located in this State provided that such service is excluded from "employment" as defined in the Federal Unemployment Tax Act solely by reason of section 3306(c)(7) of that act and is not excluded from "employment" under subdivision (6)(C)(vii) of this section.
        2. The term "employment" shall also include service for any employing unit which is performed after December 31, 1977 by an individual in the employ of this State or any political subdivision thereof or any of its instrumentalities or any instrumentality of one or more of the foregoing; and service performed for this State or any political subdivision thereof and one or more other states or political subdivisions thereof or any instrumentality of the foregoing which is wholly owned by such states or political subdivisions, provided that such service is excluded from "employment" as defined in the Federal Unemployment Tax Act by section 3306(c)(7) of that act and is not excluded from "employment" under subdivision (6)(C)(vii) of this section.
    1. Services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the Commissioner that:
      1. Such individual has been and will continue to be free from control or direction over the performance of such services, both under his or her contract of service and in fact; and
      2. Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
      3. Such individual is customarily engaged in an independently established trade, occupation, profession, or business.
    2. The term "employment" shall not include:
        1. Service performed by an individual in agricultural labor except  as provided in subdivision (6)(A)(vii) of this section.  For purposes of this subdivision, the term "agricultural labor" means any service performed prior to January 1, 1972 which was agricultural labor as defined in this subdivision prior to such date, and remunerated service performed after December 31, 1971:
          1. on a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and fur-bearing animals and wildlife;
          2. in the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm;
          3. in connection with the production or harvesting of any commodity defined as an agricultural commodity in section 15(g) of the Agricultural Marketing Act, as amended ( 12 U.S.C. § 1141j) or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, used exclusively for supplying and storing water for farming purposes;
          4. in the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity; but only if such operator produced more than one-half of the commodity with respect to which such service is performed;
          5. in the employ of a group of operators of farms, or a cooperative organization of which such operators are members, in the performance of service described in subdivision (dd) of this subdivision (C)(i)(I), but only if such operators produced more than one-half of the commodity with respect to which such service is performed;
          6. on a farm operated for profit if such service is not in the course of the employer's trade or business.
        2. As used in subdivision (6)(C)(i)(I), the term "farm" includes stock, dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards.
        3. The provisions of (dd) and (ee) of subdivision (6)(C)(i)(I) shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption.
      1. Domestic service in a private home except as provided in subdivision (6)(A)(viii) of this section;
        1. Service not in the course of the employer's trade or business performed in any calendar quarter by an employee, unless the cash remuneration paid for that service is $50.00 or more and the service is performed by an individual who is regularly employed by the employer to perform the service.  For purposes of this subdivision, an individual shall be deemed to be regularly employed by an employer during a calendar quarter if:
          1. on each of some 24 days during the quarter the individual performs for the employer for some portion of the day service not in the course of the employer's trade or business; or
          2. the individual was regularly employed (as determined under the preceding subdivision) by the employer in the performance of the service during the preceding calendar quarter.
        2. The term "service not in the course of the employer's trade or business" includes service that does not promote or advance the trade or business of the employer.  Services performed for a corporation do not come within the exception.
      2. Service performed by an individual in the employ of his or her son, daughter, or spouse, and service performed by a minor in the employ of his or her father or mother; or service by one member of a family to another under circumstances which, under the general law, do not give rise to the relation of employer and employee;
      3. Service performed in the employ of the U.S. government or of an instrumentality of the United States but if the Congress of the United States shall permit states to require that the U.S. government or any instrumentalities of the United States. shall make payments into an unemployment fund under a state unemployment compensation act, then, to the extent permitted by Congress, and from and after the date as of which such permission becomes effective, all of the provisions of this chapter shall be applicable to the U.S. government or such instrumentalities, in the same manner, to the same extent and on the same terms as to all other employers, employing units, individuals, and services; provided that if this State should not be certified by the Secretary of Labor under section 3304 of the Federal Unemployment Tax Act for any year, then the payments required of the U.S. government or such instrumentalities with respect to such year shall be deemed to  have been erroneously collected within the meaning of section 1337 of this title and shall be refunded by the Commissioner from the Fund in accordance with the provisions of section 1337;
        1. Before January 1, 1978, service performed in the employ of a state, a political subdivision thereof, or an instrumentality of one or more states or political subdivisions except as otherwise provided in this chapter with respect to service for a hospital or institution of higher education located in this State, and except as to any town, city, or other municipal corporation, as defined by 24 V.S.A. § 1751 , or an instrumentality thereof, that duly elects otherwise, as provided by this chapter with the Commissioner's approval;
        2. After December 31, 1977, in the employ of a governmental entity referred to in subdivision (6)(A)(x) of this section if such service is performed by an individual in the exercise of duties:
          1. as an elected official;
          2. as a member of a legislative body, or a member of the judiciary, of a state or political subdivision;
          3. as a member of the State National Guard or Air National Guard;
          4. as an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood, or similar emergency; or
          5. in a position which, under or pursuant to the laws of this State, is designated as a policymaking or advisory position the performance of the duties of which ordinarily does not require more than eight hours per week.
      4. For the purposes of subdivisions (6)(A)(ix) and (6)(A)(x) of this section, the term "employment" does not include service performed:
        1. in the employ of a church or convention or association of churches, or an organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches;
        2. by a duly ordained, commissioned, or licensed minister of a church in the exercise of his or her ministry or by a member of a religious order in the exercise of duties required by such order;
        3. prior to January 1, 1978, in the employ of a school which is not an institution of higher education;
        4. in a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity is limited due to being an elder or having a disability or injury or providing remunerative work for individuals who because of having a disability cannot be readily absorbed in the competitive labor market by an individual receiving such rehabilitation or remunerative work;
        5. as part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal agency or an agency of a state or political subdivision thereof, by an individual receiving such work relief or work training; or
        6. prior to January 1, 1978, for a hospital in a state prison or other state correctional institution by an inmate of the prison or correctional institution and after December 31, 1977, by an inmate of a custodial or penal institution.
      5. Service with respect to which unemployment compensation is payable under an unemployment compensation system established by an act of Congress; provided, that the Commissioner is hereby authorized and directed to enter into agreements with the proper agencies under such act of Congress, which agreements shall become effective 10 days after publication thereof in one or more newspapers of general circulation in this State, to provide reciprocal treatment to individuals who have, after acquiring potential rights to unemployment compensation under such act of Congress, acquired rights to benefits under this chapter;
      6. Service performed on and after July 1, 1939, with respect to which unemployment compensation is payable under an act of Congress entitled "Railroad Unemployment Insurance Act";
      7. Service as an officer or member of a crew of an American vessel performed on or in connection with such vessel, if the operating office, from which the operations of the vessel operating on navigable waters within or without the United States are ordinarily and regularly supervised, managed, directed, and controlled, is without this State;
      8. Service performed on or in connection with a vessel not an American vessel by an individual, if the individual performs services on and in connection with such vessel when outside the United States; and, for the purpose of this section, the term "American vessel" means any vessel documented or numbered under the laws of the United States; and includes any vessel which is neither documented or numbered under the laws of the United States nor documented under the laws of any foreign country, if its crew performs services solely for one or more citizens or residents of the United States or corporations organized under the laws of the United States or of any state;
      9. Service performed by an individual in, or as an officer or member of the crew of a vessel while it is engaged in, the catching, taking, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacea, sponges, seaweeds, or other aquatic forms of animal and vegetable life, including service performed by any such individual as an ordinary incident to any such activity, except:
        1. Service performed in connection with the catching or taking of salmon or halibut, for commercial purposes; and
        2. Service performed on or in connection with a vessel of more than 10 net tons, determined in the manner provided for determining the register tonnage of merchant vessels under the laws of the United States;
      10. Service performed in any calendar quarter in the employ of any organization exempt from income tax under Section 501(a) (other than an organization described in Section 401(a)) or under Section 521 of the federal Internal Revenue Code, if the remuneration for such service is less than $50.00;
      11. Service performed, in the employ of a school, college, or university, if such service is performed by a student who is enrolled and is regularly attending classes at such school, college, or university, or by the spouse of such a student, if the spouse is advised, at the time such spouse commences to perform such service, that the employment of such spouse to perform such service is provided under a program to provide financial assistance to such student by school, college, or university, and such employment will not be covered by any program of unemployment insurance;
      12. Service performed by an individual under the age of 22 who is enrolled at a nonprofit or public educational institution which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on as a student in a full-time program, taken for credit at such institution, which combines academic instruction with work experience, if such service is an integral part of such program, and such institution has so certified to the employer, except that this subdivision shall not apply to service performed in a program established for or on behalf of an employer or group of employers;
      13. Service performed in the employ of a hospital, if such service is performed by a patient of the hospital, as defined in this section;
      14. Service performed by an individual for a person as an insurance agent or as an insurance solicitor, if all such service performed by such individual for such person is performed for remuneration solely by way of commission;
      15. Service performed by an individual for a person as a salesman, agent, or solicitor if the state law requires the individual to be registered or licensed to engage in the performance of the service and if the individual in the performance of such service is an independent contractor under common law rules and if the individual performs all such service for remuneration solely by way of commission;
      16. Service performed by an individual engaged in the harvesting of timber, or in the transportation of timber from the place where harvested to market, or service performed by an individual engaged as a stone artisan, including sculpting, etching, or carving quarried stone when:
        1. such individual has been and will continue to be free from control or direction over the performance of such services, both under his or her contract of service and in fact; and
        2. such individual is customarily engaged in an independently established trade, occupation, profession, or business; and
        3. such individual furnishes substantially all of the equipment, tools, and supplies necessary in carrying out his or her contractual obligations to his or her clients.
      17. Service performed by a full-time student as defined in subsection (III) in the employ of an organized camp.
        1. if such camp:
          1. did not operate for more than seven months in the calendar year and did not operate for more than seven months in the preceding calendar year; or
          2. had average gross receipts for any six months in the preceding calendar year which were not more than 33 1/3 percent of its average gross receipts for the other six months in the preceding calendar year; and
        2. if such full-time student performed services in the employ of such camp for less than 13 calendar weeks in such calendar year; provided, that if the individual does not enroll in the immediately succeeding academic year or term, then the services of such individual as defined in this subsection shall be deemed to be employment for all purposes under this chapter.
        3. full-time student.  For the purposes of subdivision (xx), an individual shall be treated as a full-time student for any period:
          1. during which the individual is enrolled as a full-time student at an educational institution; or
          2. which is between academic years or terms if (A) the individual was enrolled as a full-time student at an educational institution for the immediately preceding year or term; and (B) there is a reasonable assurance that the individual will be so enrolled for the immediately succeeding academic year or term after the period described in subdivision (A).
      18. Service performed by a direct seller if the individual is in compliance with all the following:
        1. The individual is engaged in the trade or business of selling or soliciting the sale of consumer products, including services or other intangibles, in the home or a location other than in a permanent retail establishment, including whether the sale or solicitation of a sale is to any buyer on a buy-sell basis, a deposit-commission basis, or any similar basis for resale by the buyer or any other person.
        2. Substantially all the remuneration, whether or not received in cash, for the performance of the services described in subdivision (I) of this subdivision (C)(xxi) is directly related to sales or other output, including the performance of services, rather than to the number of hours worked.
        3. The services performed by the individual are performed pursuant to a written contract between the individual and the person for whom the services are performed, and the contract provides that the individual will not be treated as an employee for federal and state tax purposes.
    3. Notwithstanding any other provisions of this subdivision, service with respect to which a tax is required to be paid under any federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund or which as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act is required to be covered under this chapter.
  6. "Employment office" means a free public employment office, or branch thereof, of the Vermont Employment Service Division, or an office maintained by another state as a part of a state-controlled system of free public employment offices, or by a federal agency or any agency of a foreign government charged with the administration of an unemployment compensation program or free public employment offices; or such other agencies as the Secretary of Labor may approve.
  7. "Fund" means the Unemployment Compensation Fund established by this chapter, to which all contributions required and from which all benefits provided under this chapter shall be paid.
  8. "Total and partial unemployment."
    1. An individual shall be deemed "totally unemployed" in any week during which the individual performs no services and with respect to which no wages are earned by him or her.
    2. An individual shall be deemed "partially unemployed" in any week of less than full time work if the wages earned by him or her with respect to such week are less than the weekly benefit amount he or she would be entitled to receive if totally unemployed and eligible.
    3. As used in this subdivision, "wages" includes only that part of remuneration in any one week rounded to the next higher dollar which is in excess of the amount specified in section 1338a of this title.
    4. An individual's week of unemployment shall be deemed to commence only after his or her registration at an employment office, except as the Vermont Employment Security Board may by regulation otherwise prescribe.
  9. "State" means the states of the United States of America, the Commonwealth of Puerto Rico, the District of Columbia and after December 31, 1977, the Virgin Islands.
  10. "Unemployment Compensation Administration Fund" means the Unemployment Compensation Administration Fund established by this chapter, from which administrative expenses under this chapter shall be paid.
  11. "Wages" means all remuneration paid for services rendered by an individual, including commissions and bonuses and the cash value of all remuneration paid in any medium other than cash. Gratuities customarily received by an individual in the course of his or her employment from persons other than the individual's employer and reported by the individual to the individual's employer shall be treated as wages paid by the individual's employer. The reasonable cash value of remuneration paid in any medium other than cash shall be estimated and determined in accordance with rules prescribed by the Board. The term "wages" as used in this chapter shall not include:
    1. The amount of any payment (including any amount paid by an employer for insurance or annuities, or into a fund, to provide for any such payment) made to, or on behalf of, an employee or any of his or her dependents under a plan or system established by an employer which makes provision for his or her employees generally (or for his or her employees generally and their dependents) or for a class or classes of his or her employees (or for a class or classes of his or her employees and their dependents), on account of:
      1. sickness or accident disability (but, in the case of payments made directly to an employee or any of his or her dependents, this subparagraph shall exclude from the term "wages" only payments which are received under a workers' compensation law);
      2. medical or hospitalization expenses in connection with sickness or accident disability; or
      3. death.
    2. Any payment on account of sickness or accident disability, or medical or hospitalization expenses in connection with sickness or accident disability, made by an employer to, or on behalf of, an employee after the expiration of six calendar months following the last calendar month in which the employee worked for such employer.
    3. Any payment made to, or on behalf of, an employee or his or her beneficiary (i) from or to a trust described in Section 401(a) of the U.S. Internal Revenue Code which is exempt from tax under Section 501(a) of the U.S. Internal Revenue Code at the time of such payment unless such payment is made to an employee of the trust as remuneration for services rendered as such employee and not as a beneficiary of the trust, or (ii) under or to an annuity plan which, at the time of such payment, is a plan described in Section 403(a) of the U.S. Internal Revenue Code.
    4. The payment by an employer (without deduction from the remuneration of the employee) of the tax imposed upon an employee under Section 3101 of the U.S. Internal Revenue Code.
    5. Any amounts received from the federal government by members of the National Guard and organized reserve, as drill pay, including longevity pay and allowances.
    6. Provided; that if the definition of "wages" in section 3306 of the Federal Unemployment Tax Act is amended so as to no longer exclude from such definition any or all of the payments or amounts enumerated in subdivisions (12)(A) through (E) of this section, then any or all such payments or amounts shall no longer be excluded from the definition of "wages" under this chapter, effective on a date to coincide with the effective date of such amendment (or amendments) to the Federal Unemployment Tax Act.
    7. Any foster care payments excluded from the definition of gross income under Section 131 of the U.S. Internal Revenue Code.
  12. "Week" means such period or periods of seven consecutive days, as the Board may by regulation prescribe.
  13. "Calendar quarter" means a period of three consecutive calendar months ending on March 31, June 30, September 30, or December 31, or the equivalent thereof as the Board may by regulation prescribe.
  14. An individual's "weekly benefit amount" with respect to any week means the amount of benefits he or she would be entitled to receive for such week if totally unemployed and eligible for benefits therein.
    1. "Benefit year," with respect to any individual, means the one-year period beginning with the first day of the week with respect to which the individual first files a valid claim for benefits in accordance with section 1346 of this title, and thereafter the one-year period beginning with the first day of the first week with respect to which the individual next files such a claim for benefits after the termination of his or her last preceding benefit year. (16) (A) "Benefit year," with respect to any individual, means the one-year period beginning with the first day of the week with respect to which the individual first files a valid claim for benefits in accordance with section 1346 of this title, and thereafter the one-year period beginning with the first day of the first week with respect to which the individual next files such a claim for benefits after the termination of his or her last preceding benefit year.
    2. [Repealed.]
    1. For benefit years beginning prior to January 3, 1988, the "base period" is the period of 52 weeks ending with the day immediately preceding the first day of a claimant's benefit year.  Such period shall be extended by one week for each week, not to exceed 18, in which the claimant had no earnings because of sickness or disability as certified by a duly licensed physician. (17) (A) For benefit years beginning prior to January 3, 1988, the "base period" is the period of 52 weeks ending with the day immediately preceding the first day of a claimant's benefit year.  Such period shall be extended by one week for each week, not to exceed 18, in which the claimant had no earnings because of sickness or disability as certified by a duly licensed physician.
    2. For benefit years beginning on January 3, 1988 and subsequent thereto the "base period" shall be the period made up of the first four of the most recently completed five calendar quarters immediately preceding the first day of a claimant's benefit year, and for any individual who fails to meet the eligibility requirements of section 1338 of this title in this base period, the Commissioner shall make a redetermination of entitlement based upon a base period which consists of the last four completed calendar quarters immediately preceding the first day of the claimant's benefit year.
    3. For any individual who fails to qualify for benefits under subdivision (B) of this subdivision, the Commissioner shall make a redetermination of entitlement based upon a base period which consists of the last three completed calendar quarters and all wages paid prior to the effective date of the claimant's initial claim in the calendar quarter in which the initial claim was filed.
    4. All wages which fall within the "base period" of valid claims under this section shall not be available for reuse in qualifying for any subsequent benefit years under section 1338 or 1318 of this title.
  15. "Institution of higher education" means an educational institution which (A) admits as regular students only individuals having a certificate of graduation from a high school, or the recognized equivalent of such a certificate; (B) is legally authorized in this State to provide a program of education beyond high school; (C) provides an educational program for which it awards a bachelor's or higher degree, or provides a program which is acceptable for full credit toward such a degree, a program of post-graduate or post-doctoral studies, or a program of training to prepare students for gainful employment in a recognized occupation; and (D) is a public or other nonprofit institution.  Notwithstanding any of the foregoing provisions, all colleges and universities in this State are institutions of higher education for purposes of this chapter.
  16. "Hospital" means an institution which has been licensed, certified, or approved by the State Board of Health as a hospital, or an institution which is operated by the State of Vermont or any of its instrumentalities as a hospital.
  17. "Rate year" means the period beginning on July 1 of a year and ending on June 30 of the following year.
  18. "Bona fide employer" means the federal government, state governments and political subdivisions of state governments, railroads, tax exempt nonprofit organizations, established agricultural employers, employers liable under the unemployment compensation laws of this State, and an employer who has been assigned an employer identification number by the U.S. Internal Revenue Service.
  19. "Rounding." Notwithstanding any other provisions of this law to the contrary, any amount of unemployment compensation payable to any individual for any week if not an even dollar amount, shall be rounded to the next lower full dollar amount.
  20. "Valid claim" means a claim for benefits filed by an individual who, at the time of filing the claim, has had sufficient wages in employment with an employer or employers to qualify for benefits pursuant to section 1338 of this title. The filing of a valid claim is a prerequisite to the making of a determination of an individual's eligibility for benefits under section 1343 of this title and a determination of an individual's disqualification for benefits under section 1344 of this title.
  21. "Self-employment":
    1. Except as provided in subdivision (B) of this subdivision (24), an individual shall be deemed "self-employed" or "engaged in self-employment" in any week during which he or she is engaged, not in the employ of another, in the formation, development, or operation of a trade, business, enterprise, profession, or any other activity which he or she has undertaken for the purpose of producing income and which is in the form of a sole proprietorship, partnership, joint venture, or other similar entity.
    2. An individual who is able to work and available for full-time work shall not be deemed to be self-employed or engaged in self-employment solely by reason of continued participation without substantial change during a period of unemployment in any activity undertaken while customarily employed by an employer in full-time work (whether or not such work constituted employment) and continued subsequent to separation from such work when such activity is not engaged in as a primary source of livelihood. Earnings from such a sideline activity shall not constitute wages or disqualifying income for unemployment purposes.

      Amended 1959, No. 10 , eff. Feb. 27, 1959; 1959, No. 33 , eff. March 11, 1959; 1959, No. 10 7, § 1, eff. April 10, 1959; 1959, No. 120 , eff. Jan. 1, 1960; 1959, No. 262 , § 35, eff. June 11, 1959; 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , §§ 15, 16, eff. July 11, 1961; 1963, No. 84 ,§§ 1, 2; 1963, No. 122 , eff. June 3, 1963; 1965, No. 64 , eff. Jan. 1, 1966; 1967, No. 43 , § 1, eff. March 23, 1967; 1967, No. 184 , eff. April 17, 1967; 1967, No. 247 (Adj. Sess.), § 1, eff. Feb. 20, 1968; 1971, No. 77 , § 1, eff. Dec. 31, 1971; 1971, No. 184 (Adj. Sess.), § 7, eff. March 29, 1972; 1973, No. 74 , § 1, eff. April 14, 1973; 1975, No. 40 ; 1977, No. 64 , §§ 1-7, 21, 22; 1979, No. 53 ; 1979, No. 120 (Adj. Sess.), §§ 1-5, eff. April 14, 1980; 1981, No. 66 , § 5(b), eff. May 1, 1981; 1981, No. 86 , § 8, eff. May 10, 1981; 1983, No. 16 , §§ 1, 2, 10, 12, eff. April 4, 1983; 1985, No. 50 , §§ 1-3; 1985, No. 146 (Adj. Sess.), § 3; 1987, No. 31 , eff. May 8, 1987; 1987, No. 66 ; 1987, No. 227 (Adj. Sess.) §§ 1, 3, eff. May 26, 1988; 1991, 1987, No. 82 , § 1; 1991 No. 183 (Adj. Sess.), § 1; 1993, No. 227 (Adj. Sess.), § 17; 1997, No. 101 (Adj. Sess.), §§ 1, 6; 2003, No. 131 (Adj. Sess.), § 2; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2005, No. 136 (Adj. Sess.), § 1; 2007, No. 104 (Adj. Sess.), § 1; 2013, No. 96 (Adj. Sess.), § 139.

History

Source. 1957, No. 105 , § 1. 1957, No. 104 . 1957, No. 72 . 1955, No. 119 . 1955, No. 59 , § 1. 1953, No. 146 , §§ 1, 2. 1953, No. 80 , § 1. 1953, No. 67 , § 1. 1953, No. 65 , § 1. 1949, No. 126 , § 1. 1949, No. 125 , § 1. V.S. 1947, § 5343. 1947, No. 194 , § 1. 1945, No. 141 , § 1. 1943, No. 124 , §§ 1-3. 1943, No. 121 , §§ 1, 2. 1941, No. 149 . 1941, No. 148 , §§ 1-3. 1939, No. 181 , §§ 1-6. 1937, No. 171 , §§ 1, 2. 1936, No. 1 (Sp. Sess.), § 2.

Reference in text. Sections 401(a), 501(a) and 403(a) of the Internal Revenue Code, referred to in subdiv. (12)(C), are codified as 26 U.S.C §§ 401(a), 501(a) and 403(a) respectively.

Section 3101 of The United States Internal Revenue Code, referred to in subdiv. (12)(D), is codified as 26 U.S.C. § 3101.

Section 3306 of the Federal Unemployment Tax Act, referred to in subdiv. (12)(F) is codified as 26 U.S.C. § 3306.

The Federal Unemployment Tax Act, referred to in subdivs. (5)(G) and (6)(D), is codified as 26 U.S.C. § 3301 et seq.

Section 3306 of the Federal Unemployment Tax Act, referred to in subdivs. (6)(A)(i), (6)(A)(vii)(II), (6)(A)(ix)(I), (6)(A)(x)(I), (II), and (12)(F), is codified as 26 U.S.C. § 3306.

Sections 214(c) and 101(a)(15)(H) of the Immigration and Nationality Act, referred to in subdiv. (6)(A)(vii)(II), are codified as 8 U.S.C. §§ 1184(c) and 1101(a)(15)(H) respectively.

The Farm Labor Contractor Registration Act of 1963, referred to in subdiv. (6)(A)(vii)(III)(aa), which was codified as 7 U.S.C. § 2041 et seq., was repealed by Act Jan. 14, 1983, P.L. 97-470, Title V, Part C, § 523, 96 Stat. 2600. The subject matter is now covered by the Migrant Seasonal Agricultural Worker Protection Act, which is codified as 29 U.S.C. § 1801 et seq.

The Railroad Unemployment Insurance Act, referred to in subdiv. (6)(C)(ix), is codified as 45 U.S.C. § 351 et seq.

Sections 401(a) and 501(a) of the Internal Revenue Code, referred to in subdivs. (6)(C)(xiii) and (12)(C), are codified as 26 U.S.C. §§ 401(a) and 501(a) respectively.

Section 521 of the Federal Internal Revenue Code, referred to in subdiv. (6)(C)(xiii), is codified as 26 U.S.C. § 521.

Section 2 of the National Labor Relations Act, referred to in subdiv. (4), is codified as 29 U.S.C. § 152.

2016. In subdiv. (6)(C)(xix), deleted "but not limited to" following "including" in accordance with 2013, No. 5 , § 4.

2015. In subdivision (5)(A), substituted "subdivision (5)(B) of this section" for "subdivision (B) below" and in subdivision (6)(A)(iii), substituted "outside" for "without" to conform to V.S.A. style.

Revision note - In subdiv. (12)(C) added "of the United States Internal Revenue Code" following "403(a)" for purposes of clarity.

Substituted "his" for "its" preceding "authorized" in subdiv. (2) in light of changes made by 1961, No. 210 , § 15.

Substituted "this subdivision" for "this subsection" in subdivs. (5)(C)(i) and (ii), (5)(G), (6)(A)(i), (6)(A)(vii)(c) and (6)(D), for "this subparagraph" in subdivs. (6)(A)(v)(d) and (6)(A)(vii)(e) and for "this paragraph" in subdivs. (6)(C)(i)(a), (6)(C)(iii)(a) and (6)(C)(xv) to conform references to V.S.A. style.

Substituted "Vermont employment service division" for "Vermont state employment service" in subdiv. (7) to conform reference to § 1305 of this title.

Amendments--2013 (Adj. Sess.). Subdiv. (6)(C)(vii)(IV): Substituted "limited due to being an elder or having a disability" for "impaired by age or physical or mental deficiency" following "capacity is" and "having a disability" for "their impaired physical or mental capacity" following "because of".

Amendments--2007 (Adj. Sess.) Subdiv. (12)(G): Added.

Amendments--2005 (Adj. Sess.). Subdiv. (2): Act No. 103 substituted "Commissioner of Labor" for "commissioner of employment and training".

Subdiv. (6)(C)(xxi): Added by Act No. 136.

Amendments--2003 (Adj. Sess.). Substituted "that filed" for "which shall have filed" and deleted "to be" following "proper forms" in the first sentence, in the second sentence substituted "that files" for "which files", substituted "to this chapter" for "hereto" twice, and substituted "the approval" for "such approval" in subdiv. (5)(E)(i), inserted "(6)(A)(ix) and", deleted "as aforesaid", and deleted "such" in the first sentence of subdiv. (5)(E)(ii), deleted "and after" following "chapter from", and substituted "the" for "such" in the second sentence.

Amendments--1997 (Adj. Sess.). In subdiv. (4) inserted "labor organization as defined in section 2(5) of the National Labor Relations Act," and added subdiv. (24).

Amendments--1993 (Adj. Sess.). Subdiv. (6)(C)(vi)(b)(5): Deleted "(i) a major nontenured policymaking or advisory position, or (ii)" following "designated as".

Amendments--1991 (Adj. Sess.). Subdiv. (12): Rewrote subdiv. (A), deleted former subdiv. (B), redesignated former subdiv. (C) as subdiv. (B), redesignated former subdiv. (D) as subdiv. (C) and substituted "is a plan described in section 403(a)" for "meets the requirements of section 401(a)(3), (4), (5), and (6) of the United States Internal Revenue Code" at the end of that subdivision, redesignated former subdiv. (E) as subdiv. (D), redesignated former subdiv. (F) as subdiv. (E) and made a minor change in punctuation therein, redesignated former subdiv. (G) as subdiv. (F) and substituted "(E)" for "(F)" following "(12)(A) through" therein.

Amendments--1991. Subdiv. (6)(C)(xix): Inserted "or service performed by an individual engaged as a stone artisan including but not limited to sculpting, etching, or carving quarried stone" following "market" in the introductory paragraph.

Amendments--1987 (Adj. Sess.). Repealed subdiv. (16)(B) and added subdiv. (23).

Amendments--1987. Subdiv. (6)(A)(vii)(b): Section amended generally by Act No. 31.

Subdiv. (6)(C)(xx): Added by Act No. 66.

Amendments--1985 (Adj. Sess.). Subdiv. (17)(b): Inserted "for" preceding "any individual" and substituted "the commissioner shall make a" for "may request" preceding "redetermination".

Subdiv. (17)(C): Added.

Amendments--1985. Subdiv. (12)(G): Added.

Subdiv. (16): Designated existing provisions of subdivision as subdivs. (16)(A) and (B) and inserted "qualifying" following "earned" and deleted "subdivision (2) of" preceding "section 1338" in subdiv. (B).

Subdiv. (17): Designated existing provisions of subdivision as subdiv. (17)(A), substituted "for benefit years beginning prior to January 3, 1988, the 'base period' is" for "base period" preceding "the period" at the beginning of the first sentence of that subdivision and added subdiv. (17)(B).

Amendments--1983. Subdiv. (5)(A): Substituted "when an employing unit described in either this subdivision or subdivision (B) below" for "when such employing unit" preceding "becomes" in the second sentence.

Subdiv. (6)(A)(x)(b): Section amended generally.

Subdiv. (9)(C): Inserted "rounded" following "Week" and substituted "next higher" for "nearest" preceding "dollar".

Subdiv. (22): Added.

Amendments--1981. Subdiv. (2): Act No. 66 substituted "and training" for "security" preceding "established".

Subdiv. (9)(C): Section amended generally by Act No. 86.

Amendments--1979 (Adj. Sess.). Subdiv. (6)(A)(v): Substituted "after December 31, 1971 (except in Canada) or after December 31, 1977 in the case of the Virgin Islands" for "(except in Canada or the Virgin Islands), after December 31, 1971" following "outside the United States".

Subdiv. (6)(A)(viii): Inserted "in a local college club or local chapter of a college fraternity or sorority" following "private home".

Subdiv. (6)(C)(i)(a)(6): Deleted "or is domestic service in a private home of the employer" following "business".

Subdiv. (6)(C)(vi)(b)(5): Inserted "or advisory" preceding "position" in subdiv. (ii).

Subdiv. (10): Deleted "and" preceding "the District of Columbia" and added "and after December 31, 1977, the Virgin Islands" thereafter.

Amendments--1979. Subdiv. (6)(C)(xix): Added.

Amendments--1977. Subdiv. (4): Added "any federal, state or local governmental entity".

Subdiv. (5)(B): Section amended generally.

Subdiv. (5)(C): Section amended generally.

Subdiv. (6)(A)(i): Rewrote the first sentence.

Subdiv. (6)(A)(vii): Added.

Subdiv. (6)(A)(viii): Added.

Subdiv. (6)(A)(ix): Added.

Subdiv. (6)(A)(x): Added.

Subdiv. (6)(C)(i)(a): Added "except as provided in (A)(vii) of this subsection" at the end of the first sentence and inserted "prior to January 1, 1972 which was agricultural labor as defined in this subparagraph prior to such date, and remunerated service performed" preceding "after December 31" in the second sentence.

Subdiv. (6)(C)(ii): Added "except as provided in paragraph (A)(vii) of this subsection.

Subdiv. (6)(C)(vi): Section amended generally.

Subdiv. (6)(C)(vii): Substituted "(6)(A)(x) of this subdivision" for "(5)(B) and (5)(C)", and added "prior to January 1, 1978" in subdiv. (c), inserted "after December 31, 1977, by an inmate of a custodial or penal institution" following "correctional institution" in that subdivision.

Subdiv. (20): Added.

Subdiv. (21): Added.

Amendments--1975. Subdiv. (6)(C)(xv): Substituted "age of 22" for "age of majority".

Amendments--1973. Subdiv. (6)(C)(xvii): Added.

Subdiv. (6)(C)(xviii): Added.

Amendments--1971 (Adj. Sess.). Subdiv. (6)(C)(iv): Section amended generally.

Subdiv. (6)(C)(xv): Section amended generally.

Amendments--1971. Subdiv. (5): Section amended generally.

Subdiv. (6): Section amended generally.

Subdiv. (17): Section amended generally.

Subdiv. (18): Section amended generally.

Subdiv. (19): Section amended generally.

Subdiv. (20): Deleted.

Amendments--1967 (Adj. Sess.). Subdiv. (12): Inserted "and reported by the individual to his employer" preceding "shall be treated" in the second sentence, deleted "and the reasonable amount of gratuities" preceding "shall be estimated" in the third sentence and added subdiv. (F).

Amendments--1967. Subdiv. (5)(E): Repealed by Act No. 43.

Subdiv. (6)(C)(iii): Section amended generally by Act No. 184.

Amendments--1965. Subdiv. (6)(C)(vii): Designated existing provisions as subdiv. (a) and added subdiv. (b).

Amendments--1963. Subdiv. (16): Act No. 84 rewrote the second paragraph.

Subdiv. (17): Section amended generally by Act No. 84.

Subdiv. (20): Act No. 122 added the second sentence and made other minor stylistic changes.

Amendments--1961. Subdiv. (2): Substituted "Commissioner" for "Board" and "commissioner of employment security" for "employment security board".

Subdiv. (5)(B): Substituted "commissioner" for "board" wherever it appeared.

Subdiv. (6): Substituted "commissioner" for "board" wherever it appeared.

Subdiv. (10): Inserted "the Commonwealth of Puerto Rico".

Subdiv. (20): Substituted "commissioner of employment security" for "employment security board".

Amendments--1959 (Adj. Sess.). Substituted "employment security board" for "unemployment security commission" and "board" for "commission" throughout the section.

Amendments--1959. Subdiv. (5)(A): Act No. 120 substituted "three" for "four" preceding "or more individuals" in the first sentence.

Subdiv. (9)(C): Act No. 10 substituted "$10.00" for "$3.00" following "excess of" and "$10.50" for "$3.50" following "less than".

Subdiv. (10): Act No. 262 deleted "Alaska, Hawaii."

Subdiv. (12)(F): Added by Act No. 33.

Subdiv. (18): Added by Act No. 107.

Subdiv. (19): Added by Act No. 107.

Subdiv. (20): Added by Act No. 107.

Effective date of amendments--1985. 1985, No. 50 , § 11, provided that the amendments to subdivs. (16) and (17) of this section would take effect July 1, 1985, and that the amendment to subdiv. (12) would take effect May 11, 1985.

Effective date of amendments--1977. 1977, No. 64 , § 26(a), provided that subdivs. (20) and (21) would take effect Jan. 1, 1977.

1977, No. 64 , § 26(c), provided that subdivs. (6) (A)(vii)-(x) and the amendments to subdivs. (4), (5)(B), (5)(C), (6)(A)(i), (6)(C)(i)(a), (6)(C)(ii), (6)(C)(vi) and (6)(C)(vii) of this section would take effect Jan. 1, 1978.

Effective date of amendments--1973. 1973, No. 74 , § 2, provided that the exemptions provided for in subdivs. (6)(C)(xvii) and (xviii) of this section would be effective as of Jan. 1, 1973.

Applicability of amendments - 1985. 1985, No. 50 , § 11, provided that the enactment of subdiv. (12)(G) would apply to wages paid on and after January 1, 1985.

- 1963. 1963, No. 84 , § 6, provided that the amendments to subdivs. (16) and (17) of this section would apply to all benefit years beginning after July 1, 1963.

ANNOTATIONS

Analysis

1. Constitutionality.

Due process rights of dental clinic owner to enter into partnerships without State hindrance were not violated by decision of Employment Security Board characterizing owner as employer of dentist and office managers, despite owner's good faith attempt to create relationships that could not be characterized as employment. Burchesky v. Department of Employment & Training, 154 Vt. 355, 577 A.2d 672 (1989).

Presence of exceptions in unemployment compensation provision concerning qualification as employer did not render this chapter void, and owner of dental clinic assessed for unpaid contributions under the law was not thereby denied equal protection of the laws; chapter would violate equal protection only where exceptions were so pervasive as to render entire act irrational. Burchesky v. Department of Employment & Training, 154 Vt. 355, 577 A.2d 672 (1989).

2. Employment .

If substance of relationship between parties creates an employer-employee relationships, subjecting employer to requirements of provisions of unemployment compensation law, intention of the parties to otherwise characterize their relationship is irrelevant. Burchesky v. Department of Employment & Training, 154 Vt. 355, 577 A.2d 672 (1989).

The Legislature intended to depart from the strict common law concepts of master and servant and independent contractor by enacting subdivision (6)(B) of this section. Bluto v. Department of Employment Security, 135 Vt. 205, 373 A.2d 518 (1977).

The three concomitant conditions of subdivision (6)(B) bring under the definition of "employment" many relationships outside of the common law concepts of the relationship of master and servant. Vermont Securities, Inc. v. Vermont Unemployment Compensation Commission, 118 Vt. 196, 104 A.2d 915 (1954).

*3. Construction of terms.

Word "individual" in the unemployment compensation statute was not intended to apply to duly formed limited liability companies and therefore an employer cannot be liable for unemployment taxes on monies paid to a limited liability company. Thus, appellant was not liable for unemployment taxes on monies paid to a single-member limited liability company. In re Bourbeau Custom Homes, Inc., 205 Vt. 42, 171 A.3d 40 (2017).

The terms "outside the usual course of business" or "outside of all places of business" in subdivision (6)(B)(ii) of this section do not mean simply the home office or headquarters of the company; the places of business include not only those places but also include the business territory within which it operates, the entire area in which it conducts the business. Vermont Institute of Community Involvement, Inc. v. Department of Employment Security, 140 Vt. 94, 436 A.2d 765 (1981).

The phrases "outside the usual course of business" or "outside of all places of business" in subdivision (6)(B)(ii) of this section do not simply mean the home office or headquarters of the company, but include as well the business territory within which the company operates. In re Bargain Busters, Inc., 130 Vt. 112, 287 A.2d 554 (1972).

In subdivision (6)(B)(iii), "customarily" means usually, habitually, regularly; and an established business is one that is permanent, fixed, stable and lasting. Vermont Securities, Inc. v. Vermont Unemployment Compensation Commission, 118 Vt. 196, 104 A.2d 915 (1954).

*4. Conditions for exemption.

To rebut the presumption that all persons who receive wages from an employer are presumed to be employees and are therefore entitled to unemployment benefits, and to avoid responsibility for unemployment compensation assessments, an employer must prove that its workers meet all three elements of the statutory exception commonly known as the "ABC test" under subdivision (6)(B) of this section. Fleece on Earth v. Department of Employment and Training, 181 Vt. 458, 923 A.2d 594 (May 4, 2007).

An individual hired to perform a task is presumed to be an employee for purposes of unemployment compensation unless all three parts of the "ABC test" under subdivision (6)(B) of this section are met. Price v. Department of Employment & Training, 150 Vt. 78, 549 A.2d 641 (1988).

For an employer to satisfy the provision of subdivision (6)(B) of this section, exempting service performed by an individual for wages from assessment for unemployment compensation contributions, all three conditions of the statutory test (customarily called the "ABC" test) must be met, and an inability to satisfy any one will result in the conclusion that the relationship constitutes employment for purposes of this section. Vermont Institute of Community Involvement, Inc. v. Department of Employment Security, 140 Vt. 94, 436 A.2d 765 (1981).

Exemption from employment under subdivision (6)(B) of this section is established only if all conditions are met, and the failure to demonstrate even one condition will result in the determination of the entitlement to benefits. Bluto v. Department of Employment Security, 135 Vt. 205, 373 A.2d 518 (1977).

Employment Security Board's determination that claimant was self-employed could not be reviewed on the basis of common law concepts, rather it would be considered an implied finding that the employer presented sufficient evidence to establish that claimant fell within the three concomitant conditions of subdivision (6)(B). Bluto v. Department of Employment Security, 135 Vt. 205, 373 A.2d 518 (1977).

Under subdivision (6)(B), the three conditions that would negative the relationship of statutory "employment" must all co-exist, and failure of one necessarily results in relationship being one of employment. State v. Stevens, 116 Vt. 394, 77 A.2d 844 (1951); Vermont Securities, Inc. v. Vermont Unemployment Compensation Commission, 118 Vt. 196, 104 A.2d 915 (1954).

*5. Control over performance.

For purposes of assessing unemployment insurance taxes, an individual who was a corporate officer effectively managed and directed herself or others performing bookkeeping services on behalf of the employer, and therefore did not satisfy the part of the statutory test requiring freedom from the employer's "control or direction." Bradford's Trucking, Inc. v. Dep't of Labor, 199 Vt. 504, 125 A.3d 135 (2015).

Under the statutory scheme pertaining to the test for the degree of control and direction retained by the employing entity over the services performed, the issue is broader than the common law master-servant relation, and it draws into its sweep workers who might be independent contractors under the common law. Fleece on Earth v. Department of Employment and Training, 181 Vt. 458, 923 A.2d 594 (May 4, 2007).

Workers making clothing at home performed a unique job, producing the specific product the company sold under the direction and control of the company. Thus, the decision of the Employment Security Board that the workers were employees for purposes of assessing unemployment taxes on the company was consistent not only with the statute and the court's precedents, but also with the remedial purpose of the unemployment laws. Fleece on Earth v. Department of Employment and Training, 181 Vt. 458, 923 A.2d 594 (May 4, 2007).

Subdivision (6)(B)(i) of this section, exempting service performed by an individual for wages from assessment for unemployment compensation contributions where the individual has been and will continue to be free from control or direction over the performance of services, does not require that actual control be exercised by the employer; the mere right of control is all that is contemplated. Vermont Institute of Community Involvement, Inc. v. Department of Employment Security, 140 Vt. 94, 436 A.2d 765 (1981).

Where faculty of college was required to follow an approved course description, teach a certain number of hours, evaluate each student at the course's end, and the college theoretically required each teacher to attend a presemester orientation session and three faculty meetings per session, faculty was not free from college's control within the contemplation of subdivision (6)(B)(i) of this section. Vermont Institute of Community Involvement, Inc. v. Department of Employment Security, 140 Vt. 94, 436 A.2d 765 (1981).

*6. Usual course of business.

It would seem that the service performed by home knitters and sewers was not "outside the usual course of the business for which such service is performed" because it was the key component of the apparel business for which the service was performed. Fleece on Earth v. Department of Employment and Training, 181 Vt. 458, 923 A.2d 594 (May 4, 2007).

Dentist and office managers compensated by owner of dental clinic at fixed percentage of gross revenue generated were not performing services "outside the usual course of the business for which such service is performed"; the clear focus of this section involves the clinic owner's usual course of business, not the usual course of business of the persons performing services for him. Burchesky v. Department of Employment & Training, 154 Vt. 355, 577 A.2d 672 (1989).

In proceeding to assess unemployment compensation contributions, evidence supported conclusion that delivery or distribution of newspapers was not "outside the usual course of the business" of a newspaper publisher, within the meaning of subdivision (6)(B)(ii) of this section, and therefore that services performed by rural driver, who delivered newspapers, were "employment" within the meaning of this section. Times-Argus Association, Inc. v. Department of Employment & Training, 146 Vt. 320, 503 A.2d 129 (1985).

*7. Independent activities.

For purposes of assessing unemployment insurance taxes, an employer failed to show that two individuals who performed bookkeeping services were "customarily engaged in an independently established" business, as the first individual's independently established trade was daycare, not bookkeeping, and while the second individual had worked as a bookkeeper, his service was as an employee, not as the proprietor of an independently established business. Bradford's Trucking, Inc. v. Dep't of Labor, 199 Vt. 504, 125 A.3d 135 (2015).

With regard to the part of the test addressing whether a worker is "customarily engaged in an independently established trade, occupation, profession or business," the conclusion that workers could not have their own businesses if they were also 40-hour-a-week employees for other entities was not logical because nothing in the statute requires the workers to be engaged full-time in their independent business or trade. Fleece on Earth v. Department of Employment and Training, 181 Vt. 458, 923 A.2d 594 (May 4, 2007).

Where a worker who made clothing at home also worked 40 hours a week as a respite care worker, this latter work was not similar to the work she did for the clothing company, and it was error for the Employment Security Board to consider it in deciding the issue whether the worker was "customarily engaged in an independently established trade, occupation, profession or business"; the section requires workers to be "independently established providing the same or similar services as they provide for the employer." Fleece on Earth v. Department of Employment and Training, 181 Vt. 458, 923 A.2d 594 (May 4, 2007).

In order to satisfy subdivision (6)(B)(iii) of this section, exempting service performed by an individual for wages from assessment for unemployment compensation contributions where the individual performing the service is customarily engaged in an independently established trade, occupation, profession or business, the employees must be independently established providing the same or similar services as they provide for the employer. Vermont Institute of Community Involvement, Inc. v. Department of Employment Security, 140 Vt. 94, 436 A.2d 765 (1981).

Teachers who were employed by college, but were not employed as full-time teachers and were otherwise engaged primarily in nonteaching trades, but were not independently established providing the same or similar services as they provided for employer, were not regularly engaged in independently established occupations within meaning of subdivision (6)(B)(iii) of this section. Vermont Institute of Community Involvement, Inc. v. Department of Employment Security, 140 Vt. 94, 436 A.2d 765 (1981).

Subdivision (6)(B)(iii) of this section requires a showing that a claimant was engaged in independent activity at the time of rendering the service involved. Bluto v. Department of Employment Security, 135 Vt. 205, 373 A.2d 518 (1977).

*8. Salesmen.

Dentist working in dental clinic was not a "salesman, agent or solicitor" for owner of clinic for purposes of characterizing dentist's services as employment. Burchesky v. Department of Employment & Training, 154 Vt. 355, 577 A.2d 672 (1989).

In appeal from decision of Employment Security Board assessing unpaid contributions against owner of dental clinic, claim that dentist working in clinic was a "salesman, agent or solicitor" of owner would not be considered where not raised below. Burchesky v. Department of Employment & Training, 154 Vt. 355, 577 A.2d 672 (1989).

Part time salesmen selling advertising in weekly advertiser were performing personal services for remuneration and, thus, those services were deemed employment subject to this chapter unless the requirements of subdivision (6)(B) of this section were fulfilled. In re Bargain Busters, Inc., 130 Vt. 112, 287 A.2d 554 (1972).

*9. Religious school .

In the absence of discrimination based on how a religious school is operated, a Christian school had no claim to exemption from unemployment compensation contributions under the First Amendment or under the Common Benefits Clause in the Vermont Constitution. The Vermont statute neither unconstitutionally burdens the free exercise of religion, nor establishes religion. Further, the statute does not unconstitutionally discriminate between independent schools, and those supported by a church, convention or association. Mid Vermont Christian School v. Department of Employment and Training, 178 Vt. 448, 885 A.2d 1210 (August 26, 2005).

10. Partnership.

Agreement between dentist and owner of dental clinic in which owner compensated dentist a fixed percentage of fees collected in exchange for dentist's use of clinic premises, equipment and support staff, but in which dentist did not share in risks or benefits of the business, did not create a partnership or independent contracting agreement exempting owner from characterization as an employer, despite contractual language purporting to create such relationship. Burchesky v. Department of Employment & Training, 154 Vt. 355, 577 A.2d 672 (1989).

For purposes of this section, office managers of dental clinic working under owner's control and at owner's place of business did not have partnership or independent contractor relationship with owner of clinic. Burchesky v. Department of Employment & Training, 154 Vt. 355, 577 A.2d 672 (1989).

11. Unemployment.

"Valid claim" for unemployment compensation benefits was established by a determination of monetary eligibility at the time that an initial claim was filed, at which time the liability of the employer was established; a reimbursable employer was then responsible for payments towards the employee's unemployment compensation without the need for any new adjudication of that liability. Windham County Sheriff's Dep't v. Dep't of Labor, 195 Vt. 1, 86 A.3d 410 (2013).

Because a "liability" of a reimbursable employer was established at the point of an employee making a valid claim for unemployment compensation benefits, such liability was not changed by the amendment to the reimbursement statute as to an employee's gross misconduct. Windham County Sheriff's Dep't v. Dep't of Labor, 195 Vt. 1, 86 A.3d 410 (2013).

Period during which employee was suspended without pay counted as unemployment under subdivision (9)(A) of this section. Santwire v. Department of Employment & Training, 148 Vt. 142, 530 A.2d 571 (1987).

Nonprofessional school workers, including teachers' aides, school bus drivers, crossing guards and other positioned employees paid on an hourly basis, who did not receive any remuneration from their respective employers during the weeks constituting the traditional Christmas, mid-winter, and spring vacations observed by the public schools, since the schools were closed during those weeks, were properly held to be entitled to unemployment benefits for those weeks since they were unemployed during the one-week layoffs and were available for work during the same periods. Donahue v. Department of Employment Security, 142 Vt. 351, 454 A.2d 1244 (1982).

Where nonprofessional school workers, including teachers' aides, school bus drivers, crossing guards and other positioned employees paid on an hourly basis, did not perform any work for and did not receive any remuneration from their employers during the weeks constituting the traditional Christmas, mid-winter, and spring vacations observed by the public schools were closed during those weeks, they were unemployed during the one-week layoffs; the facts that the employment relationship was not severed during the layoff period and that the claimants intended to return to work for their employers at the end of the layoff did not alter their status as "unemployed" persons under the terms of this section. Donahue v. Department of Employment Security, 142 Vt. 351, 454 A.2d 1244 (1982).

Minority stockholder and vice-president of small family corporation, who did not work and received no compensation, was unemployed and entitled to unemployment compensation where subdivision (9)(A) of this section provided that a person was unemployed in any week during which he performed no services and with respect to which no wages were earned. Archer v. Department of Employment Security, 133 Vt. 279, 336 A.2d 172 (1975).

12. Wages.

Flat-fee contracts, awarded through bidding process, with drivers for delivery of newspapers were "wages" within subdivision (12) of this section. Caledonian-Record Publishing Co. v. Department of Employment & Training, 151 Vt. 256, 559 A.2d 678 (1989).

In assessment of wages for unemployment contributions, employment security board was within its discretion in refusing to allow newspaper publisher to deduct carriers' expenses from flat-fee delivery contracts, where publisher did not present specific evidence on expenses such as receipts or itemized statements. Caledonian-Record Publishing Co. v. Department of Employment & Training, 151 Vt. 256, 559 A.2d 678 (1989).

Employment security board properly held that payments made by newspaper publisher to rural drivers who delivered its newspapers constituted "wages" under subdivision (12) of this section. Times-Argus Association, Inc. v. Department of Employment & Training, 146 Vt. 320, 503 A.2d 129 (1985).

Determination of employment security board that the definition of wages in subdivision (12) of this section includes anything of value provided to an employee in exchange for services unless the provision of the benefit has no compensatory aspect, and its refusal to interpret that definition in the same manner as for federal income-tax withholding, was not erroneous, since its determination was based on the plain meaning of subdivision (12) and there was no basis for construing an unemployment compensation statute in light of tax laws. Vermont Camping Association v. Department of Employment & Training, 145 Vt. 630, 497 A.2d 353 (1985).

Supplemental benefits are not wages within the meaning of this chapter, and, thus, are not deductible from state benefits. 1956-58 Op. Atty. Gen. 212.

Fact that employer, by custom or pursuant to contract of employment, deferred payment of wages earned in prior period of employment until subsequent date within week in which claimant performed no services and earned no wages did to render claimant ineligible for benefits. 1946-48 Op. Atty. Gen. 342.

13. Benefit year.

Under subdivision (16) of this section, the base year for each claimant should be determined with reference to applications that are "valid" in meeting both the earnings requirements under section 1338 of this title and all other requirements and qualifications for unemployment benefits; a claim that does not result in the granting of benefits may thus not trigger a benefit year and base period. City of Burlington v. Department of Employment & Training, 148 Vt. 151, 530 A.2d 573 (1987).

14. Direct seller exemption.

Because drivers for a food delivery service did not create the contract of sale, but simply delivered the food and collected the purchase price, they were not "direct sellers"; thus, their employer was not exempt from having to make unemployment contributions on their behalf. The fact that they accepted assignments as they wished and were paid on the basis of how many deliveries they completed had no bearing on the threshold question of whether they were engaged in selling or soliciting sales, and there was no evidence that they "closed" sales. 863 To Go, Inc. v. Dep't of Labor, 196 Vt. 551, 99 A.3d 629 (June 13, 2014).

15. Independent contractor status found.

Worker was an independent contractor under the "ABC test," and appellant was therefore not liable for unemployment insurance taxes as to him, when he declined an offer of employment from appellant, set his own schedule, worked without supervision, was free to accept or decline work, used his own specialized equipment, purchased his own materials, sometimes supplied materials to other contractors, negotiated his own pay schedules on a project-to-project basis, and worked outside the usual course of appellant's general contracting business in that he performed highly specialized restoration work. The determination that he was independently established had not been challenged. Great N. Constr., Inc. v. Dep't of Labor, 204 Vt. 1, 161 A.3d 1207 (Dec. 9, 2016).

16. Employee status found.

Appellant was liable for unemployment taxes as to four of its workers, as the work of carpenters, concrete-siding installers, and painters was necessary and central to the business of building homes, appellant was not only in the business of designing homes and organizing the construction process, but was also in the business of building and selling the homes that it designed, and the services performed by the four workers at issue were not outside the usual course of appellant's business. In re Bourbeau Custom Homes, Inc., 205 Vt. 42, 171 A.3d 40 (2017).

Worker failed the "independently established" prong of the ABC test, and thus was deemed an employee for whom appellant was required to pay unemployment insurance taxes, in that the record suggested any work he did for others was sporadic and subordinate to that he did for appellant, he was new to the construction business in Vermont, he was not registered as an independent business, he did not file a Schedule C tax form, and he advertised only by word of mouth. The fact that appellant took no action against the worker when he declined to work on a mural project due to his religious beliefs showed nothing more than that appellant was mindful of its potential obligations under federal law. Great N. Constr., Inc. v. Dep't of Labor, 204 Vt. 1, 161 A.3d 1207 (Dec. 9, 2016).

17. Eligibility.

Because appellant's pre-disability wages had already been used to meet his monetary eligibility requirement for the unsuccessful unemployment claims he had filed beginning in December 2014, which had established a benefit year for those claims even though he did not get any unemployment benefits at that time for other reasons, they could not be used again for his 2017 unemployment claim. Lillie v. Dep't of Labor, 208 Vt. 6, 194 A.3d 267 (2018).

Even if a claimant's benefit period began on February 2, 2016, when the claimant called the Unemployment Division after realizing that her worker's compensation benefits had stopped, instead of when she first called the Unemployment Division in May 2015, she would not have been monetarily eligible for unemployment benefits under any of the four monetary methods provided by law because she would have received nothing since February 2, 2016 was more than six months after March 20, 2015. Skidmore v. Dep't of Labor, 205 Vt. 215, 172 A.3d 1210 (2017).

Cited. In re Cadieux, 129 Vt. 624, 285 A.2d 738 (1971); In re Platt, 130 Vt. 329, 292 A.2d 822 (1972); In re Smith, Bell & Hauck Real Estate, Inc., 132 Vt. 295, 318 A.2d 183 (1974); Grenafege v. Department of Employment Security, 134 Vt. 288, 357 A.2d 118 (1976); Jenkins v. Department of Employment Security, 135 Vt. 210, 373 A.2d 533 (1977); Spaulding v. Department of Employment Security, 139 Vt. 562, 433 A.2d 269 (1981); Riddel v. Department of Employment Security, 140 Vt. 82, 436 A.2d 1086 (1982); Trapeni v. Dept. of Employment Security, 142 Vt. 317, 455 A.2d 329 (1982); Sirloin Saloon of Shelburne, Rutland, & Manchester, Inc. v. Department of Employment & Training, 151 Vt. 123, 558 A.2d 226 (1989); Allen v. Department of Employment & Training, 159 Vt. 286, 618 A.2d 1317 (1992); Corcoran v. Department of Employment and Training, 178 Vt. 579, 878 A.2d 1069 (mem.) (May 12, 2005); Stowell v. Action Moving & Storage, Inc., 182 Vt. 98, 933 A.2d 1128 (June 1, 2007).

§ 1301a. Department of Labor; composition.

The Department of Labor, created by 3 V.S.A. § 212 , shall consist of a Commissioner of Labor, the Vermont Employment Security Board, the Vermont Workforce Development Division, the Economic and Labor Market Information Division, the Workforce Development Council, the Unemployment Insurance and Wages Division, and the Workers' Compensation and Safety Division. The Chair of the Employment Security Board shall be the Commissioner of Labor ex officio. The Deputy Commissioner of Labor or a designee chosen by the Commissioner may serve as Chair in the absence of the Commissioner as the Commissioner's designee.

Added 1959, No. 329 (Adj. Sess.) § 20, eff. March 1, 1961; amended 1981, No. 66 , § 2, eff. May 1, 1981; 2005, No. 212 (Adj. Sess.), § 13, eff. May 29, 2006; 2011, No. 162 (Adj. Sess.), § E.401.11.

History

Editor's note. Although 1961, No. 210 , § 15, amended each section of the law (with certain exceptions not applicable to this section) containing the words "employment security board" by substituting "commissioner of employment security" for "employment security board," the amendment was not executed in this section in view of the context of the references.

Amendments--2011 (Adj. Sess.). Substituted "3 V.S.A. § " for "section" preceding "212"; deleted "of Title 3" following "212" and inserted "the economic and labor market information division, the workforce development council" following "division," and "or a designee chosen by the commissioner" following "labor".

Amendments--2005 (Adj. Sess.) Section amended generally.

Amendments--1981. Substituted "employment and training" for "employment security" wherever it appeared, deleted "and" preceding "unemployment compensation division" and added "and the comprehensive employment and training office" thereafter.

Cross References

Cross references. Advisory Council, see § 1306 of this title.

§ 1301b. Repealed. 2001, No. 142, § 302c.

History

Former § 1301b. Former § 1301b, relating to employment and training, authority to establish and classify positions, was derived from 1995, No. 178 (Adj. Sess.), § 271.

§ 1302. Vermont Employment Security Board, composition, duties.

  1. There is hereby created a board of three members to be known as the Vermont Employment Security Board.  The members of the Board shall be appointed by the Governor, with the advice and consent of the Senate.  The term of each member shall be six years.  Biennially, in the month of February, with the advice and consent of the Senate, the Governor shall appoint a person as a member of such Board for the term of six years, whose term of office shall commence March 1 of the year in which such appointment is made.  Any appointment to a vacancy shall be for the unexpired term.  In case of a vacancy by resignation, the member resigning shall continue in office until his or her successor is appointed.  No more than two members of the Board shall be members of the same political party. Biennially, in the month of February, the Governor shall designate a member of such board to be its chair.  The Governor may at any time remove a member of such Board for gross inefficiency, neglect of duty, malfeasance, misfeasance, or nonfeasance in office.
  2. The Board may hear and decide all matters appealed to it under this chapter.  It shall determine its own methods of procedure.  It may, with the approval of the Governor, adopt, amend, suspend, or rescind such rules and regulations as it considers necessary and consistent with this chapter.  The rules and regulations of the Board shall have the force and effect of law after public hearing thereon of which reasonable notice has been given, and after filing with the Secretary of State, and publication in such manner as the Board shall prescribe.  The Board may administer oaths, take depositions, certify to official acts, and subpoena witnesses and compel the production of books, papers, correspondence, memoranda, and other records necessary and material in the discharge of its duties imposed by this chapter.

    Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 1, eff. July 11, 1961.

History

Source. V.S. 1947, § 5344. 1947, No. 202 , § 10,287. 1936, No. 1 (Sp. Sess.), § 9(a).

2016. In subsec. (a), in the seventh sentence, substituted "chair" for "chairman" in accordance with 2013, No. 161 (Adj. Sess.), § 72.

Revision note - Undesignated paragraphs were designated as subsecs. (a) and (b) to conform section to V.S.A. style.

Amendments--1961. Added "composition, duties" following "board" in the section catchline, substituted "member" for "commissioner" preceding "resigning" in the sixth sentence of the first paragraph and added the second paragraph.

Amendments--1959 (Adj. Sess.). Substituted "employment security board" for "unemployment compensation commission" and "board" for "commission" throughout the section.

Cross References

Cross references. Publication of rules and regulations, see § 1312 of this title.

§ 1303. Compensation.

The Commissioner of Labor shall be paid an annual salary, as provided by 32 V.S.A. § 1003 and necessary expenses incurred in the performance of the Commissioner's duties. Each other member of the Board shall be paid a per diem fixed by the Emergency Board while engaged in work connected with his or her official duties and shall be entitled to his or her actual and necessary expenses when away from home in discharge of such duties. All vouchers for salary, per diem, or expenses of a member shall be approved by the other members of the Board before payment thereof.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 2, eff. July 11, 1961; 1981, No. 66 , § 5(b), eff. May 1, 1981; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Source. V.S. 1947, § 5345. 1947, No. 202 , § 10,288. 1945, No. 187 , $ 1. 1936, No. 1 (Sp. Sess.), § 9(b).

Revision note. In the first sentence, substituted "section 1003" for "section 1002" to conform reference to repeal of former section 1002 of Title 32, enactment of section 1001b governing subject matter, and redesignation of section 1001b as section 1003.

Amendments--2005 (Adj. Sess.) Substituted "Commissioner of Labor" for "commissioner of employment and training" in the first sentence.

Amendments--1981. Substituted "and training" for "security" following "employment" in the first sentence.

Amendments--1961. Substituted "commissioner of employment security" for "chairman of the board" in the first sentence, "member" for "commissioner", "fixed by the emergency board" for "as elsewhere fixed by law" and "shall be entitled" for "shall receive" in the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "Employment Security Board" for "unemployment compensation commission" in the first sentence and "board" for "commission" in the second and third sentences.

Cross References

Cross references. Emergency Board, see 32 V.S.A. § 131 et seq.

§ 1304. Quorum.

Any two members of the Board shall constitute a quorum to transact business. No vacancy shall impair the right of the remaining members to exercise all of the powers of the Board, as long as a majority remain.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 3, eff. July 11, 1961.

History

Source. V.S. 1947, § 5346. 1936, No. 1 (Sp. Sess.), § 9(c).

Amendments--1961. Substituted "members" for "commissioners" following "any two" in the first sentence and following "remaining" in the second sentence, and deleted the third sentence.

Amendments--1959 (Adj. Sess.). Substituted "Board" for "commission" following "powers of the" in the second sentence and preceding "shall determine" in the third sentence.

§ 1305. Divisions; Comprehensive Employment and Training Office.

There is hereby established within the Department of Labor, the Vermont Employment Service Division, the Unemployment Compensation Division, and the Comprehensive Employment and Training Office. Each division and office shall be responsible for the discharge of its distinctive function. Each division and office shall be so far as is practicable a separate administrative unit with respect to personnel, budget, and duties.

Amended 1959, No. 329 (Adj. Sess.), § 21, eff. March 1, 1961; 1981, No. 66 , § 3, eff. May 1, 1981; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Source. V.S. 1947, § 5347. 1947, No. 202 , § 10,290. 1936, No. 1 (Sp. Sess.), § 9(d).

Amendments--2005 (Adj. Sess.) Substituted "department of labor" for "department of employment and training" in the first sentence.

Amendments--1981. Added "comprehensive employment and training office" at the end of the catchline, substituted "and training" for "security" following "department of employment", deleted "and" preceding "the unemployment compensation division" and added "and the comprehensive employment and training office" thereafter in the first sentence and inserted "and office" preceding "shall be" in the second and third sentences.

Amendments--1959 (Adj. Sess.). Deleted " -- " from the beginning of the catchline, substituted "there is hereby established within the department of employment security" for "the commission shall establish" at the beginning of the first sentence and deleted "state" preceding "employment Service" in that sentence.

§ 1305a. Comprehensive Employment and Training Office.

  1. With the approval of the Governor, the Commissioner shall appoint a Director of the Comprehensive Employment and Training Office and fix his or her salary. The Director shall serve at the pleasure of the Commissioner.  The Commissioner may appoint such other personnel and may organize the Office as he or she deems necessary to carry out its functions and duties, and may delegate such powers and authority to the Director of the Office as he or she deems necessary for its efficient administration.
  2. The Comprehensive Employment and Training Office shall provide job training and employment opportunities for economically disadvantaged, unemployed, and underemployed persons through a system of federal and State programs, and is hereby authorized to serve on behalf of the Governor, through the Commissioner of Labor, as the prime sponsor in accordance with the Comprehensive Employment and Training Act (P.L. 95-524); provided further, that such responsibilities and authorization shall continue only so long as the federal government provides funds to execute such responsibilities.

    Added 1981, No. 66 , § 4, eff. May 1, 1981; amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Reference in text. The Comprehensive Employment and Training Act (P.L. 95-524), referred to in subsec. (b), has been repealed. The Act was codified as 29 U.S.C. §§ 801-999.

Amendments--2005 (Adj. Sess.) Subsec. (b): Substituted "Commissioner of Labor" for "commissioner of employment and training" in the first sentence.

Federal funding. 1995, No. 178 (Adj. Sess.), § 271, provided: "The commissioner of employment and training, as agent for the governor in accordance with the provisions of the Job Training Partnership Act (P.L. 97-300) is hereby authorized to accept federal grants provided for in the Job Training Partnership Act".

1995, No. 63 , § 274, provided: "The commissioner of employment and training, as agent for the governor in accordance with the provisions of the Job Training Partnership Act (P.L. 97 - 300) [29 U.S.C. § 1501 et seq.] is hereby authorized to accept federal grants provided for in the Job Training Partnership Act".

1993, No. 210 (Adj. Sess.) § 274, provided: "The commissioner of employment and training, as agent for the governor on accordance with the provisions of the Job Training Partnership Act (P.L. 97-300) [29 U.S.C. § 1501 et. seq.] is hereby authorized to accept federal grants provided for in the Job Training Partnership Act".

1987, No. 89 , § 302, provided: "The commissioner of employment and training, as agent for the governor in accordance with the provisions of the Job Training Partnership Act (PL 97-300)[29 U.S.C. § 1501 et. seq.] is herby authorized to accept federal grants provided for in the Job Training Partnership Act in lieu of or in addition to funding available through the Comprehensive Employment and Training Act".

§ 1305b. Repealed. 1995, No. 45, § 4.

History

Former § 1305b. Former § 1305b, relating to the human resources investment council, was derived from 1993, No. 89 , § 10. The subject matter is now covered by § 541 et seq. of Title 10.

§ 1306. Advisory Council; members; terms.

  1. The Governor shall appoint a State Department of Labor Advisory Council composed of eight members from the general public to include four employer representatives and four employee representatives who may fairly be regarded as employees because of their vocations, employment, and affiliations. Appointment of the four employee representatives, at least one of whom shall have experience in workers' compensation law and one of whom shall be a member of a building trade, shall be made from a list of qualified individuals submitted by the Vermont State Labor Council, the Vermont State Employees' Association, and the Vermont National Education Association. Appointment of the four employer representatives shall be made from a list of qualified individuals submitted by the Vermont Chamber of Commerce, Associated General Contractors of Vermont, and Vermont Businesses for Social Responsibility. The Council members shall be appointed for staggered terms of four years. The Council shall meet at least three times a year.
  2. The Council shall advise the Commissioner regarding formulating policies by discussing the problems related to the functions and duties of the Department in order to develop impartial solutions and approaches to these issues.
  3. The Commissioner may establish subcommittees composed solely of labor or management representatives and use a portion of the Council's meeting time to meet with these subcommittees.
  4. Each member of the Council who is not a salaried official or State employee or is not otherwise compensated through employment for attending Council meetings is entitled to per diem compensation and reimbursement for expenses as provided in 32 V.S.A. § 1010 .

    Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1969, No. 206 (Adj. Sess.); 2005, No. 212 (Adj. Sess.), § 2, eff. May 29, 2006; 2009, No. 135 (Adj. Sess.), § 18.

History

Source. V.S. 1947, § 5348. 1947, No. 195 , § 1.

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "three times a year" for "six times a year" in the last sentence.

Amendments--2005 (Adj. Sess.). Section amended generally.

Amendments--1969 (Adj. Sess.). Rewrote the third sentence.

Amendments--1961. Substituted "commissioner" for "board" preceding "in formulating" in the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "in formulating" in the second sentence.

§ 1307. Commissioner of Labor, duties and powers of.

The Commissioner of Labor shall administer this chapter. The Commissioner may employ such persons, make such expenditures, require such reports, make such investigations, and take such other action as he or she considers necessary or suitable to that end. In the discharge of his or her duties imposed by this chapter, the Commissioner may administer oaths, take depositions, certify to official acts, and subpoena witnesses and compel the production of books, papers, correspondence, memoranda, and other records necessary and material to the administration of this chapter.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 4, eff. July 11, 1961; 1981, No. 66 , § 5(b), eff. May 1, 1981; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Source. V.S. 1947, § 5349. 1947, No. 22 , § 10,291. 1945, No. 142 , § 1. 1936, No. 1 (Sp. Sess.), § 10(a).

Amendments--2005 (Adj. Sess.) Substituted "Commissioner of Labor" for "commissioner of employment and training" in the section catchline, and in the first sentence.

Amendments--1981. Substituted "and training" for "security" following "employment" in the catchline and in the first sentence.

Amendments--1961. Section amended generally.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" wherever it appeared.

ANNOTATIONS

Cited. Langlois v. Department of Employment & Training, 149 Vt. 498, 546 A.2d 1365 (1988).

§ 1308. Organization.

The Commissioner shall determine his or her method of procedure in accordance with the provisions of this chapter.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961.

History

Source. V.S. 1947, § 5350. 1945, No. 142 , § 1. 1936, No. 1 (Sp. Sess.), § 10(a).

Revision note. Substituted "his" for "its" preceding "method" in light of change made by 1961, No. 210 , § 15.

Amendments--1961. Substituted "Commissioner" for "board" preceding "shall determine".

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "shall determine".

§ 1309. Reports; solvency of Trust Fund.

    1. On or before January 31 of each year, the Commissioner shall submit to the Governor and the Chairs of the Senate Committees on Economic Development, Housing and General Affairs and on Finance and the House Committees on Commerce and Economic Development and on Ways and Means a report covering the administration and operation of this chapter during the preceding calendar year. (a) (1)  On or before January 31 of each year, the Commissioner shall submit to the Governor and the Chairs of the Senate Committees on Economic Development, Housing and General Affairs and on Finance and the House Committees on Commerce and Economic Development and on Ways and Means a report covering the administration and operation of this chapter during the preceding calendar year.
    2. The report shall include:
      1. a balance sheet of the monies in the Fund and data as to probable reserve requirements based upon accepted actuarial principles, with respect to business activity, and other relevant factors for the longest available period;
      2. recommendations for amendments of this chapter as the Board considers proper; and
      3. an accounting of the amount of supplemental benefits paid to claimants pursuant to subdivision 1338(e)(2) of this chapter.
  1. Whenever the Commissioner believes that the solvency of the Fund is in danger or the balance of the Fund drops below $180,000,000.00, the Commissioner shall promptly inform the Governor and the Chairs of the Senate Committees on Economic Development, Housing and General Affairs and on Finance and the House Committees on Commerce and Economic Development and on Ways and Means and make recommendations for preserving an adequate level in the Trust Fund. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this section.

    Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 5, eff. July 11, 1961; 2009, No. 124 (Adj. Sess.), § 1; 2013, No. 142 (Adj. Sess.), § 36; 2021, No. 51 , § 13, eff. June 1, 2021.

History

Source. V.S. 1947, § 5351. 1945, No. 142 , § 1. 1936, No. 1 (Sp. Sess.), § 10(a).

Amendments--2021. Section amended generally.

Amendments--2013 (Adj. Sess.). Substituted "monies" for "moneys" following "include a balance sheet of the", and added the last sentence.

Amendments--2009 (Adj. Sess.) Added "solvency of trust fund" in the section catchline, and rewrote the first and last sentences.

Amendments--1961. Section amended generally.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

Cross References

Cross references. Publication of reports, see § 1312 of this title.

§ 1310. Repealed. 1959, No. 329 (Adj. Sess.), § 59, eff. March 1, 1961.

History

Former § 1310. Former § 1310, relating to appointment of a director of unemployment compensation to administer this chapter, was derived from V.S. 1947, § 5352; 1936, No. 1 (Sp. Sess.), § 10(b).

§ 1311. Employees.

Subject to other provisions of this chapter, the Commissioner is authorized to appoint a Deputy Commissioner and such officers, accountants, attorneys, and employees as may be necessary in the performance of his or her duties. The Commissioner may delegate to any such person so appointed such power and authority deemed reasonable and proper for the effective administration of this chapter, and may, in the Commissioner's discretion, bond any person handling monies or signing checks hereunder.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1971, No. 191 (Adj. Sess.), § 12; 1985, No. 225 (Adj. Sess.), § 16.

History

Source. V.S. 1947, § 5353. 1936, No. 1 (Sp. Sess.), § 10(c).

Revision note. Substituted "his" for "its" preceding "duties" in the first sentence and "discretion" in the second sentence and "he" for "it" preceding "deems" in the second sentence in light of changes made by 1961, No. 210 , § 15.

Amendments--1985 (Adj. Sess.). Inserted "a deputy commissioner and" following "appoint" and "or her" following "his" in the first sentence and substituted "deemed" for "as he deems" following "authority" and "the commissioner's" for "his" preceding "discretion" in the second sentence.

Amendments--1971 (Adj. Sess.). Rewrote the catchline and deleted the third sentence.

Amendments--1961. Substituted "commissioner" for "board" throughout the section.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

§ 1311a. Professional training for employees.

The Commissioner, using grant funds made available by the United States, may, to the extent permitted and subject to the approval of the Governor, provide professional training for the Department's employees by contracting with educational institutions for short courses or other forms of intensive instruction.

Added 1959, No. 137 , eff. April 22, 1959; amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1981, No. 66 , § 5(b), eff. May 1, 1981; 2021, No. 20 , § 219.

History

Revision note. Substituted "his" for "its" preceding "employees" in light of change made by 1961, No. 210 , § 15.

Amendments--2021. Section amended generally.

Amendments--1981. Substituted "and training" for "security" following "employment".

Amendments--1961. Substituted "commissioner of employment security" for "employment security board".

Amendments--1959 (Adj. Sess.). Substituted "employment security board" for "unemployment compensation commission".

§ 1312. Publication of rules, regulations, reports.

The Commissioner shall cause to be printed for distribution to the public the text of this chapter, the Board's rules and regulations, his or her annual reports to the Governor, and any other material the Commissioner considers relevant and suitable. He or she shall furnish the same to any person upon application therefor.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 6, eff. July 11, 1961.

History

Source. V.S. 1947, § 5354. 1936, No. 1 (Sp. Sess.), § 10(d).

Amendments--1961. Substituted "Commissioner" for "board" preceding "shall cause" and following "material the" in the first sentence and "his" for "its" preceding "annual" in that sentence, and "he" for "it" preceding "shall furnish" in the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

§ 1313. Repealed. 2003, No. 122 (Adj. Sess.), § 294(o).

History

Former § 1313. Former § 1313, relating to employment stabilization, was derived from V.S. 1947, § 5355 and 1936, No. 1 (Sp. Sess.), § 10(e), and amended by 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15.

§ 1314. Reports and records; separation information; determination of eligibility; failure to report employment information; disclosure of information to other State agencies to investigate misclassification or miscoding.

  1. The Commissioner may require any employing unit to keep such true and accurate records and make such reports covering persons employed by it respecting employment, wages, hours, unemployment, and related matters as the Commissioner deems reasonably necessary for the effective administration of this chapter.  Such records shall be open to inspection and subject to being copied by the Commissioner or his or her authorized representatives at any reasonable time and as often as may be necessary.
  2. On request of the Commissioner, an employing unit shall report, within 10 days of the mailing or personal delivery of the request, employment and separation information with respect to a claimant and the wages paid to a claimant.
  3. If an employing unit fails to comply adequately with the provisions of subsection (b) of this section and section 1314a of this title, the Commissioner shall determine the benefit rights of a claimant upon such information as is available. Prompt notice in writing of the determination shall be given to the employing unit. The determination shall be final with respect to a noncomplying employer as to any charges against its experience-rating record for benefits paid to the claimant before the week following the receipt of the employing unit's reply. The employing unit's experience rating record shall not be relieved of these charges, notwithstanding any other provision of this chapter, unless the Commissioner determines that failure to comply was due to unavoidable accident or mistake.
    1. Except as otherwise provided in this chapter, information obtained from any employing unit or individual in the administration of this chapter and determinations as to the benefit rights of any individual shall be held confidential and shall not be disclosed or open to public inspection in any manner revealing the individual's or employing unit's identity, nor be admissible in evidence in any action or proceeding other than one arising out of this chapter, or to support or facilitate an investigation by a public agency identified in subdivision (e)(1) of this section. (d) (1)  Except as otherwise provided in this chapter, information obtained from any employing unit or individual in the administration of this chapter and determinations as to the benefit rights of any individual shall be held confidential and shall not be disclosed or open to public inspection in any manner revealing the individual's or employing unit's identity, nor be admissible in evidence in any action or proceeding other than one arising out of this chapter, or to support or facilitate an investigation by a public agency identified in subdivision (e)(1) of this section.
    2. An individual or his or her duly authorized agent may be supplied with information from those records to the extent necessary for the proper presentation of his or her claims for benefits or to inform him or her of his or her existing or prospective rights to benefits; an employing unit may be furnished with such information as may be deemed proper, within the discretion of the Commissioner, to enable it to fully discharge its obligations and safeguard its rights under this chapter.
    3. Automatic data processing services and systems and programming services within the Department of Labor shall be the responsibility and under the direct control of the Commissioner in the administration of this chapter and chapter 15 of this title.
    4. Notwithstanding the provisions in subdivision (3) of this subsection, the Department of Labor shall, at the request of the Agency of Administration, perform such services for other departments and agencies of the State as are within the capacity of its data processing equipment and personnel, provided that such services can be accomplished without undue interference with the designated work of the Department of Labor.
    1. Subject to such restrictions as the Board may by regulation prescribe, information from unemployment insurance records may be made available to any public officer or public agency of this or any other state or the federal government dealing with the administration or regulation of relief, public assistance, unemployment compensation, a system of public employment offices, wages and hours of employment, workers' compensation, misclassification or miscoding of workers, occupational safety and health, or a public works program for purposes appropriate to the necessary operation of those offices or agencies. The Commissioner may also make information available to colleges, universities, and public agencies of the State for use in connection with research projects of a public service nature and to the Vermont Economic Progress Council with regard to the administration of 32 V.S.A. chapter 105, subchapter 2, but no person associated with those institutions or agencies may disclose that information in any manner that would reveal the identity of any individual or employing unit from or concerning whom the information was obtained by Commissioner. (e) (1)  Subject to such restrictions as the Board may by regulation prescribe, information from unemployment insurance records may be made available to any public officer or public agency of this or any other state or the federal government dealing with the administration or regulation of relief, public assistance, unemployment compensation, a system of public employment offices, wages and hours of employment, workers' compensation, misclassification or miscoding of workers, occupational safety and health, or a public works program for purposes appropriate to the necessary operation of those offices or agencies. The Commissioner may also make information available to colleges, universities, and public agencies of the State for use in connection with research projects of a public service nature and to the Vermont Economic Progress Council with regard to the administration of 32 V.S.A. chapter 105, subchapter 2, but no person associated with those institutions or agencies may disclose that information in any manner that would reveal the identity of any individual or employing unit from or concerning whom the information was obtained by Commissioner.
      1. The Department of Labor shall participate in the income and eligibility verification procedures under the Deficit Reduction Act of 1984, Pub. L. No. 98-369, which provides for the exchange of information among state agencies administering programs funded with federal monies provided under the Temporary Assistance for Needy Families (TANF) block grant, Medicaid, Supplemental Nutrition Assistance Program (SNAP), SSI, Unemployment Compensation, and any other state program under a plan approved under Title I, X, XIV, or XVI of the Social Security Act.
      2. The Department of Labor is designated as the Vermont agency for the collection of wage records on workers covered under this chapter, as required by the Deficit Reduction Act of 1984, Pub. L. No. 98-369.
        1. The Department of Labor shall disclose, upon request, to officers or employees of any state or local child support enforcement agency any wage information or other information material to the location of an individual, the individual's assets, or the individual's place of employment or other source of income contained in the Department's unemployment compensation claim records with respect to an identified individual that is contained in those records.
        2. The term "state or local child support enforcement agency" means any agency of a state or political subdivision thereof operating pursuant to a plan described in Section 454 of the Social Security Act, which has been approved by the Secretary of Health and Human Services under part D, Title IV of the Social Security Act.
      1. The requesting agency shall agree that information provided under this subsection is to be used only for the following purposes:
        1. establishing and collecting child support obligations from, and locating, individuals owing such obligations that are being enforced pursuant to a plan described in Section 454 of the Social Security Act that has been approved by the Secretary of Health and Human Services under part D, Title IV of the Social Security Act; and
        2. establishing parentage and expediting procedures relating to establishing parentage pursuant to Section 466(c)(1) of the Social Security Act as added by Section 325(a)(2) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. 104-193.
      1. The Department of Labor shall disclose, upon request, to officers and employees of the U.S. Department of Agriculture and any state agency, with respect to an identified individual, any of the following information that is contained in its records: (3) (A) The Department of Labor shall disclose, upon request, to officers and employees of the U.S. Department of Agriculture and any state agency, with respect to an identified individual, any of the following information that is contained in its records:
        1. wage information;
        2. whether the individual is receiving, has received, or has made application for unemployment compensation and the amount of any compensation being received or to be received by such individual;
        3. the current or most recent home address of the individual; and
        4. whether the individual has refused an offer of employment and, if so, a description of the employment offered and the terms, conditions, and rate of pay therefor.
      2. The term "state agency" means any agency described in 7 U.S.C. § 2012(s) that administers the Supplemental Nutrition Assistance Program established under that act.
      3. The requesting agency shall agree that such information shall be used only for purposes of determining the applicant's eligibility for benefits, or the amount of benefits, under the Supplemental Nutrition Assistance Program established under 7 U.S.C. chapter 51.
      4. The information shall not be released unless the requesting agency agrees to reimburse the costs involved for furnishing such information.
      5. In addition to the requirements of this subdivision, all other requirements with respect to confidentiality of information obtained in the administration of this chapter and the sanctions imposed for improper disclosure of information obtained in the administration of this chapter shall apply to the use of such information by the officers and employees of any state agency or the U.S. Department of Agriculture.
        1. The Department of Labor shall disclose, upon request, to officers or employees of any state or local agency charged with administering TANF, any wage information with respect to an identified individual that is contained in its records, which is necessary for the purpose of determining an individual's eligibility for aid or services or the amount of such aid or services to needy families with children.
        2. The term "state or local agency charged with administering TANF" means any such agency administering a plan approved under part A of Title IV of the Social Security Act.
      1. The information requested shall not be released unless the requesting TANF agency agrees to reimburse the Department of Labor for the costs involved in furnishing such information.
      2. The requesting agency shall agree that the requested information shall be used only for the purposes authorized in subdivision (e)(4)(A) of this section.
      1. The Department of Labor shall disclose to officers or employees of the Federal Parent Locator Service (FPLS) or National New Hire Directory any employment, wage, and unemployment compensation claim information contained in its claim records that may be useful in locating an absent parent or the parent's employer solely for purposes of administering the child support enforcement provisions of Title IV of the Social Security Act. (5) (A) The Department of Labor shall disclose to officers or employees of the Federal Parent Locator Service (FPLS) or National New Hire Directory any employment, wage, and unemployment compensation claim information contained in its claim records that may be useful in locating an absent parent or the parent's employer solely for purposes of administering the child support enforcement provisions of Title IV of the Social Security Act.
      2. The requesting Federal Parent Locator Service shall agree that the requested information shall be used only for purposes authorized in Section 303(h)(1) of the Social Security Act.
      3. The information requested shall not be released unless the requesting Federal Parent Locator Service agrees to reimburse the Department of Labor for the costs involved in furnishing the requested information.
      1. The Department of Labor shall disclose, upon request, to officers or employees of the Department of Housing and Urban Development (HUD) and to representatives of a public housing agency any wage information and unemployment compensation benefit information that is contained in its records with respect to an identified individual applying for or participating in any housing assistance program administered by HUD that is necessary for the purposes of determining the individual's eligibility for benefits or the amount of benefits under a HUD housing assistance program. For the purposes of this subdivision, the term "public housing agency" means any agency described in section 3(b)(6) of the U.S. Housing Act of 1937 that is authorized to engage in or assist in the development or operation of low-income housing. (6) (A) The Department of Labor shall disclose, upon request, to officers or employees of the Department of Housing and Urban Development (HUD) and to representatives of a public housing agency any wage information and unemployment compensation benefit information that is contained in its records with respect to an identified individual applying for or participating in any housing assistance program administered by HUD that is necessary for the purposes of determining the individual's eligibility for benefits or the amount of benefits under a HUD housing assistance program. For the purposes of this subdivision, the term "public housing agency" means any agency described in section 3(b)(6) of the U.S. Housing Act of 1937 that is authorized to engage in or assist in the development or operation of low-income housing.
      2. HUD or the requesting public housing agency shall agree that the requested information shall be used only for purposes of determining individual's eligibility for benefits or the amount of benefits under a HUD housing assistance program and that it will comply with the provisions of 20 C.F.R. § 603.7 and the limitations on the use of the information set forth in section 904(c)(2) of P.L. 100-628.
      3. The information requested shall not be released unless the individual about whom the requested information relates has signed a consent form, approved by the Secretary of HUD, which permits the release of the requested information.
      4. The information requested shall not be released unless HUD or the requesting public housing agency agrees to reimburse the Department of Labor for the costs involved in furnishing the requested information.
      1. The Department of Labor shall disclose, upon request, to officers and employees of the Vermont Center for Crime Victim Services, with respect to an identified individual, the name and address of the individual's employer. (7) (A) The Department of Labor shall disclose, upon request, to officers and employees of the Vermont Center for Crime Victim Services, with respect to an identified individual, the name and address of the individual's employer.
      2. The Center and the Department shall develop an agreement that complies with 20 C.F.R. § 603.6, and the Center shall comply with the confidentiality requirements of 20 C.F.R. § 603.7.
    2. Subdivision (e)(8) effective until July 1, 2026; see also subdivision (e)(8) effective July 1, 2026 set out below.  The Department of Labor shall disclose, upon request:
      1. to the Attorney General and employees of the Office of the Attorney General, information necessary for the Attorney General to investigate a complaint and enforce the provisions of this chapter as provided pursuant to section 1379 of this chapter; and
      2. to the Commissioners of Financial Regulation and of Taxes and employees of the Departments of Financial Regulation and of Taxes, information necessary to investigate misclassification or miscoding of workers under the insurance and tax laws that are under their jurisdiction.

        (8) Subdivision (e)(8) effective July 1, 2026; see also subdivision (e)(8) effective until July 1, 2026 set out above. [Repealed.]

  4. Nothing contained in this section shall be deemed to interfere with the disclosure of certain information obtained under this chapter as provided in sections 1315, 1316, and 1317 of this title or to interfere with disclosure to the Internal Revenue Service of the U.S. Department of the Treasury or to any state for purposes of the Federal Unemployment Tax Act or for the purposes of taxation of unemployment compensation benefits paid to individuals by this Department. Information may be exchanged with the Vermont Department of Taxes for the purpose of establishing liability of employers for unemployment compensation purposes or identifying employers affected by Vermont tax laws. Information reported to the Department of Labor may be provided to the Vermont Department of Taxes for the purposes of assessment and collection of Vermont taxes, including identifying nonfilers of the State tax; locating and identifying persons in debt to the Department of Taxes; and verifying eligibility for tax credits, tax adjustments, or other tax benefits.
  5. All written or oral reports, or other communications, from an employer or his or her workers to each other, or to the Commissioner or any of his or her agents, representatives, or employees, made in connection with the requirements and administration of this chapter or the regulations thereunder, shall be absolutely privileged and shall not be made the subject matter or basis for any suit for slander or libel in any court of this State, unless they are false in fact and malicious in intent.
  6. Any employing unit that fails to report employment and separation information with respect to a claimant and wages paid to a claimant required under subsection (b) of this section shall be subject to a penalty of $100.00 for each report not received by the prescribed due date, which penalty shall be collected in the manner provided for the collection of contributions in section 1329 of this title and shall be paid into the contingent fund provided in section 1365 of this title. If the employing unit demonstrates that its failure was due to a reasonable cause, the Commissioner may waive the penalty.

    Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1965, No. 26 , eff. April 14, 1965; 1967, No. 89 ; 1973, No. 168 (Adj. Sess.); 1975, No. 62 , § 1, eff. April 18, 1975; 1979, No. 120 (Adj. Sess.), § 6, eff. Jan. 1, 1980; 1981, No. 66 , § 5(a), eff. May 1, 1981; 1981, No. 194 (Adj. Sess.), § 1; 1985, No. 50 , §§ 4, 5; 1987, No. 278 (Adj. Sess.), § 3, eff. June 21, 1988; 1989, No. 132 (Adj. Sess.), §§ 1, 2; 1991, No. 186 (Adj. Sess.), § 34, eff. May 7, 1992; 1993, No. 177 (Adj. Sess.), § 1; 1997, No. 63 , §§ 19, 19a, eff. Sept. 1, 1997; 2003, No. 70 (Adj. Sess.), § 63, eff. March 1, 2004; 2003, No. 92 (Adj. Sess.), § 4; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2005, No. 184 (Adj. Sess.), § 14; 2009, No. 54 , § 69a, eff. June 1, 2009; 2009, No. 124 (Adj. Sess.), § 8; 2009, No. 142 (Adj. Sess.), § 6; 2011, No. 50 , § 7, eff. May 26, 2011; 2013, No. 131 (Adj. Sess.), § 125; 2013, No. 179 (Adj. Sess.), § E.400; 2015, No. 157 (Adj. Sess.), § H.3, eff. Jan. 1, 2017; 2017, No. 74 , § 48; 2019, No. 85 (Adj. Sess.), § 3, eff. Feb. 20, 2020; 2019, No. 85 (Adj. Sess.), § 12, eff. July 1, 2026; 2021, No. 20 , § 220.

History

Source. V.S. 1947, § 5356. 1937, No. 171 , § 8(f). 1936, No. 1 (Sp. Sess.), § 10(f).

Reference in text. Section 466(c)(1) of the Social Security Act as added by section 325(a)(2) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Public Law 104-193), referred to in subdiv. (e)(2)(B)(ii), is codified as 42 U.S.C. § 666.

Title IV of the Social Security Act, referred to in subdiv. (e)(5)(A), is codified as 42 U.S.C. § 601 et seq.

Section 303(h)(1) of the Social Security Act, referred to in subdiv. (e)(5)(B), is codified as 42 U.S.C. § 503.

Section 3(b)(6) of the United States Housing Act of 1937, referred to in subdiv. (e)(6)(A), is codified as 42 U.S.C. § 1437a(b)(6).

Section 904(c)(2) of P.L. 100-628, referred to in subdiv. (e)(6)(B), is codified as 42 U.S.C. § 3544.

The income and eligibility verification procedures under P.L. 98-369 (The Deficit Reduction Act of 1984), referred to in subdiv. (e)(1)(A), appear principally in 42 U.S.C. § 1320b-7. Related provisions appear in 7 U.S.C. § 2020, 26 U.S.C. § 6103 and 42 U.S.C. §§ 302, 503, 1202, 1352 and 1383.

Titles I, X, XIV, and XVI of the Social Security Act, referred to in subdiv. (e)(1)(A), are codified as 42 U.S.C. §§ 301 et seq., 1201 et seq., 1351 et seq., and 1381 et seq., respectively.

The wage record collection requirements of P.L. 98-369, referred to in subdiv. (e)(1)(B), appear principally in 42 U.S.C. § 1320b-7.

Section 454 of the Social Security Act, referred to in subdivs. (e)(2)(A)(i) and (e)(2)(B)(i), is codified as 42 U.S.C. § 654.

The Food Stamp Act of 1977, referred to in subdiv. (e)(3)(C), is codified as 7 U.S.C. § 2011 et seq. Section (3)(n)(1) of the Act, referred to in subdiv. (e)(3)(B), is codified as 7 U.S.C. § 2012(n)(1).

Part A of Title IV of the Social Security Act, referred to in subdiv. (e)(4)(A)(i), is codified as 42 U.S.C. § 601 et seq.

The Federal Unemployment Tax Act, referred to in subsec. (f), is codified as 26 U.S.C. § 3301 et seq.

2015. In subdiv. (e)(3)(B), substituted "7 U.S.C. § 2012(s)" for "7 U.S.C. § 2012(n)" to correct cross-reference.

Revision note - In the first sentence of subsec. (c), substituted "section 1314a" for "section 1314(a)" to correct an error in the reference.

In the second sentence of subsec. (c), substituted "commissioner" for "commission" to conform to prior amendment of section by 1961, No. 210 , § 15.

Redesignated subdivs. (e)(1)(i) and (ii) as subdivs. (e)(1)(A) and (B) to conform subdivision designations to V.S.A. style.

In subsec. (f), substituted "this chapter" for "this act" to conform references to V.S.A. style.

2003 (Adj. Sess.). The text of this section is based on a correlation of two amendments. During the 2003 Adjourned Session, this section was amended twice, by Act Nos. 70 and 92 resulting in two versions of this section. In order to reflect all of the changes intended by the Legislature during the 2003 Adjourned Session, the texts of Act Nos. 70 and 92 were merged to arrive at a single version of this section. The changes which each of the amendments made are described in amendment notes set out below.

Amendments--2021. Subdiv. (e)(6)(D): Substituted "requesting" for "requested" preceding "public housing agency”.

Amendments--2019 (Adj. Sess.). Subdiv. (e)(8): Added by 2019, No. 85 (Adj. Sess.), § 3.

Subdiv. (e)(8): Repealed eff. July 1, 2026 by 2019, No. 85 (Adj. Sess.), § 12.

Amendments--2017. Subdivs. (e)(4)(A)-(e)(4)(B): Substituted "TANF" for "AFDC" throughout.

Amendments--2015 (Adj. Sess.). Subdiv. (e)(1): Substituted "32 V.S.A. chapter 105, subchapter 2" for "32 V.S.A. chapter 151, subchapter 11E" in the second sentence.

Amendments--2013 (Adj. Sess.). Subsec. (c): Act No. 179 inserted "adequately" following "unit fails to comply", and deleted "unless the amount of benefits is recovered from the claimant, or" following "provision of this chapter,".

Subsec. (e): Amended generally.

Amendments--2011. Catchline: Added "; disclosure of information to other state agencies to investigate misclassification or miscoding" following "information".

Subsec. (d): Inserted ", or to support or facilitate an investigation by a public agency identified in subdivision (e)(1) of this section" following "chapter" in subdiv. (1), added subdiv. (2) designation, and redesignated former subdivs. (2) and (3) as present subdivs. (3) and (4).

Subdiv. (e)(1): Inserted "misclassification or miscoding of workers" following "compensation,".

Amendments--2009 (Adj. Sess.) Subsec. (c): Act 124 added "separation information; determination of eligibility" in the section catchline, substituted "and" for "and/or after October 1, 1986" preceding "section 1314a" in the first sentence, and rewrote the former third sentence as the present third and fourth sentences.

Subsec. (h): Act 142 added "failure to report employment information" to the section catchline; substituted "that fails" for "which fails" and "$100.00" for "$35.00", and deleted "such" preceding "report" in the first sentence, and deleted "in his or her discretion" preceding "waive" in the second sentence.

Amendments--2009. Subdiv. (e)(1): Inserted "or regulation" following "administration", and "workers' compensation, occupational safety and health" following "hours of employment" in the first sentence.

Amendments--2005 (Adj. Sess.). Act No. 103 substituted "department of labor" for "department of employment and training" wherever it appeared throughout the section.

Act No. 184 inserted "and to the Vermont economic progress council with regard to the administration of subchapter 11E of chapter 151 of Title 32" following "nature" in subdiv. (e)(1).

Amendments--2003 (Adj. Sess.). Act No. 70 deleted "property tax rebate" preceding "eligibility" and inserted "for tax credits, tax adjustments, or other tax benefits" following "eligibility" in subsection (f).

Act No. 92 added subdiv. (e)(7).

Amendments--1997 Subsec. (e): Rewrote subdivs. (2)(A), (2)(B), and (5)(A).

Amendments--1993 (Adj. Sess.). Subsec. (c): Added the second sentence and rewrote the third sentence.

Amendments--1991 (Adj. Sess.). Subsec. (f): Substituted "interfere with disclosure" for "make information available" preceding "to the internal" in the first sentence and deleted "employee wage" preceding "information", inserted "assessment and collection of Vermont taxes, including but not limited to" following "purposes of", deleted "income" following "state", substituted "and identifying persons" for "individuals" preceding "in debt" and made a minor stylistic change in the third sentence.

Amendments--1989 (Adj. Sess.). Subsec. (e): Added subdivs. (5) and (6).

Subsec. (h): Amended generally.

Amendments--1987 (Adj. Sess.). Subsection (f): Added the second and third sentences.

Amendments--1985. Subsec. (c): Inserted "and/or after October 1, 1986, section 1314a" preceding "the commissioner" in the first sentence.

Subdiv. (e)(1)(i): Added.

Subdiv. (e)(1)(ii): Added.

Amendments--1981 (Adj. Sess.). Subsec. (e): Designated existing provisions of subsection as subdiv. (1) and added subdivs. (2)-(4).

Amendments--1981. Substituted "department of employment and training" for "department of employment security" throughout subsecs. (d) and (e).

Amendments--1979 (Adj. Sess.). Subsec. (f): Amended generally.

Amendments--1975. Subsec. (d): Designated existing provisions of subsection as subdiv. (1) and added subdivs. (2) and (3).

Amendments--1973 (Adj. Sess.). Subsec. (h): Added.

Amendments--1967. Subsection (a): Deleted the third sentence.

Subsec. (d): Added.

Subsec. (e): Added.

Subsec. (f): Added.

Subsec. (g): Added.

Amendments--1965. Designated existing provisions of section as subsec. (a) and added subsecs. (b) and (c).

Amendments--1961. Substituted "commissioner" for "board" throughout the section.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

Effective date of amendments--1985. 1985, No. 50 , § 11, provided that the amendment to subsec. (c) of this section would take effect July 1, 1985, and that the enactment of subdivs. (e)(1)(i) and (ii) would take effect May 11, 1985.

Cross References

Cross references. Filing of contribution reports by employers, see § 1322 of this title.

ANNOTATIONS

Analysis

1. Purpose.

Purpose behind statute prohibiting disclosure of unemployment compensation information is to encourage full, free and honest reporting to Department of Employment and Training, by protecting identities and statements of both employers and employees. Haverly v. Kaytec, Inc., 169 Vt. 350, 738 A.2d 86 (1999).

The purpose of subsection (c) of this section is to insure that the Department of Employment and Training receives accurate and timely information on which to base its decision regarding benefits. Trombley v. Department of Employment & Training, 146 Vt. 332, 503 A.2d 537 (1985).

2. Inaccurate reports.

Sanctions under subsection (c) of this section are applicable when an employer has filed a timely but inaccurate report. Trombley v. Department of Employment & Training, 146 Vt. 332, 503 A.2d 537 (1985).

3. Privilege.

Employee suing for constructive discharge could not claim protection from disclosure of unemployment information and, at the same time, bring an action for damages putting content of his statements directly at issue, since to do so would be to use statutory privilege as a sword as well as a shield; by bringing suit and putting his reasons for leaving job at issue, employee waived any protection he may have had under statute with respect to statements made by him in applying for unemployment benefits. Haverly v. Kaytec, Inc., 169 Vt. 350, 738 A.2d 86 (1999).

This section, creating a statutory absolute privilege for communications by an employer or employee to the Commissioner of the Department of Employment and Training regarding applications for unemployment compensation benefits, shows that Vermont recognizes a confidential communications privilege to parties outside the intra-corporate context. Marcoux-Norton v. Kmart Corp., 907 F. Supp. 766 (D. Vt. 1993).

Cited. International Brotherhood of Elec. Workers, Local 300 v. Enosburg Falls Water & Light Dep't, 148 Vt. 26, 527 A.2d 1150 (1987).

§ 1314a. Quarterly wage reporting; misclassification; penalties.

    1. Each employing unit that is an employer that has individuals in employment as defined in subdivision 1301(6) of this chapter shall file with the Commissioner on forms supplied by the Commissioner a detailed wage report for each calendar quarter that contains each individual worker's name, Social Security number, gross wages paid during each calendar quarter, and any other information the Commissioner deems necessary in the administration of this chapter. (a) (1)  Each employing unit that is an employer that has individuals in employment as defined in subdivision 1301(6) of this chapter shall file with the Commissioner on forms supplied by the Commissioner a detailed wage report for each calendar quarter that contains each individual worker's name, Social Security number, gross wages paid during each calendar quarter, and any other information the Commissioner deems necessary in the administration of this chapter.
    2. In addition to other information required by this section, the wage reports required by this subsection shall include for each worker paid by the hour the worker's gender and the worker's hourly wage.
  1. Reports required by subsection (a) of this section shall be filed with the Commissioner by the last day of the calendar month following the calendar quarter for which the report is submitted.
  2. An employing unit that is not an employer shall, upon request of the Commissioner, submit reports on forms furnished by the Commissioner regarding employment, wages, hours of employment, unemployment, and related matters that the Commissioner deems necessary in the administration of this chapter.
  3. Reports required by subsection (c) of this section shall be submitted to the Commissioner not later than 10 calendar days after the date the Commissioner's request was mailed to the employing unit.
  4. On request of the Commissioner, any employing unit or employer shall report, within 10 days of the mailing or personal delivery of the request, separation information for a claimant, any disqualifying income the claimant may have received, and any other information that the Commissioner may require to determine the claimant's eligibility for unemployment compensation. The Commissioner shall make a request when:
    1. the claimant's eligibility is dependent upon:
      1. wages paid during an incomplete calendar quarter in which the claimant was separated; or
      2. the last completed quarter; and
    2. obtaining the information will result in more timely benefit payments.
    1. Any employing unit or employer that fails to: (f) (1)  Any employing unit or employer that fails to:
      1. File a report required by this section shall be subject to an administrative penalty of $100.00 for each report not received by the prescribed due dates.
      2. Properly classify an individual regarding the status of employment shall be subject to an administrative penalty of not more than $5,000.00 for each improperly classified employee. In addition, an employer found to have violated this section is prohibited from contracting, directly or indirectly, with the State or any of its subdivisions for up to three years following the date the employer was found to have failed to properly classify, as determined by the Commissioner in consultation with the Commissioner of Buildings and General Services or the Secretary of Transportation, as appropriate. Either the Secretary or the Commissioner, as appropriate, shall be consulted in any appeal relating to prohibiting the employer from contracting with the State or its subdivisions.
      1. Penalties under this subsection (f) shall be collected in the same manner as contributions under section 1329 of this title and shall be paid into the Contingent Fund established in section 1365 of this title. (2) (A) Penalties under this subsection (f) shall be collected in the same manner as contributions under section 1329 of this title and shall be paid into the Contingent Fund established in section 1365 of this title.
      2. If the employing unit demonstrates that its failure was due to a reasonable cause, the Commissioner may waive or reduce the penalty.
    1. Notwithstanding any other provisions of this section, the Commissioner may, where practicable, require any employing unit to file the reports required pursuant to subsections (a) through (d) of this section, or any departmental registration required prior to submitting the reports required by this section, in an electronic media form. (g) (1)  Notwithstanding any other provisions of this section, the Commissioner may, where practicable, require any employing unit to file the reports required pursuant to subsections (a) through (d) of this section, or any departmental registration required prior to submitting the reports required by this section, in an electronic media form.
    2. The Commissioner may waive the requirement that an employing unit submit a report in an electronic media form if the employing unit attests that it is unable to file the required report in that form.

      Added 1985, No. 50 , § 6; amended 1985, No. 146 (Adj. Sess.), § 4; 1987, No. 227 (Adj. Sess.), § 2, eff. May 26, 1988; 1989, No. 132 (Adj. Sess.), § 3; 1997, No. 101 (Adj. Sess.), § 2; 1999, No. 119 (Adj. Sess.), § 10, eff. May 18, 2000; 2001, No. 56 , § 1; 2009, No. 142 (Adj. Sess.), § 9; 2013, No. 173 (Adj. Sess.), § 2; 2019, No. 91 (Adj. Sess.), § 29, eff. July 1, 2020.

History

Revision note. Redesignated subsec. (i), as originally added by 1997, No. 101 (Adj. Sess.), § 2, as subsec. (g) for purposes of conformity with V.S.A. style.

Amendments--2019 (Adj. Sess.) Section amended generally.

Amendments--2013 (Adj. Sess.). Subsection (g): Substituted "any employing unit" for "employing units with 25 or more employees" following "practicable require of".

Amendments--2009 (Adj. Sess.) Catchline: Substituted "misclassification; penalties" for "required".

Subsec. (f): Amended generally.

Amendments--2001. Subsec. (a): Substituted "subdivision" for "section" in two places in the first sentence; inserted "and" preceding "the worker's hourly wage" and deleted "and the average weekly hours worked during the quarter" thereafter in the second sentence.

Amendments--1999 (Adj. Sess.). Subsec. (a): Added the second and third sentences.

Amendments--1997 (Adj. Sess.). Added subsec. (i).

Amendments--1989 (Adj. Sess.). Subsec. (f): Amended generally.

Amendments--1987 (Adj. Sess.). Subsec. (a): Substituted "gross wages paid" for "wages earned" following "social security number".

Amendments--1985 (Adj. Sess.). Subsec. (e): Added the last sentence.

Cross References

Cross references. Filing of contribution reports by employers, see § 1322 of this title.

ANNOTATIONS

Cited. Trombley v. Department of Employment & Training, 146 Vt. 332, 503 A.2d 537 (1985).

§ 1315. State-federal cooperation.

In the administration of this chapter, the Commissioner shall cooperate to the fullest extent consistent with the provisions thereof, with the Secretary of Labor; shall make such reports, in such form and containing such information as the Secretary of Labor may from time to time require, and shall comply with such provisions as the Secretary of Labor may from time to time find necessary to assure the correctness and verification of such reports; and shall comply with the regulations prescribed by the Secretary of Labor governing the expenditures of such sums as may be allotted and paid to this State under Title III of the Social Security Act for the purpose of assisting in the administration of this chapter.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961.

History

Source. V.S. 1947, § 5357. 1936, No. 1 (Sp. Sess.), § 10(g).

Reference in text. Title III of the Social Security Act, referred to in this section, is codified as 42 U.S.C. § 501 et seq.

Revision note. References to "Social Security Board" were changed to "Secretary of Labor" and "created by the Social Security Act approved August 14, 1935, as amended" following the first such reference was deleted to conform language to reorganization of federal government. Section 4 of Reorganization Plan No. 2 of 1946 abolished the Social Security Board and transferred all of its functions to the federal security administrator. Section 1 of Reorganization Plan No. 2 of 1949 transferred the functions of the federal security administrator relating to unemployment compensation to the secretary of labor. See 42 U.S.C. § 501 et seq.

Amendments--1961. Substituted "Commissioner" for "board" preceding "shall cooperate".

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "shall cooperate".

§ 1316. Furnishing data.

Upon request therefor, the Commissioner shall furnish to any agency of the United States charged with the administration of public works or assistance through public employment the name, address, ordinary occupation, and employment status of each recipient of benefits and such recipient's rights to further benefits under this chapter.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961.

History

Source. V.S. 1947, § 5358. 1936, No. 1 (Sp. Sess.), § 14(g).

Amendments--1961. Substituted "Commissioner" for "board" preceding "shall furnish".

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "shall furnish".

§ 1317. Railroad Retirement Board.

The Commissioner may make available to the Railroad Retirement Board such records relating to the administration of this chapter as that Board deems necessary for its purposes in administering the federal Railroad Unemployment Insurance Act and may furnish copies of such records to the Board at the latter's expense.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961.

History

Source. V.S. 1947, § 5359. 1939, No. 181 , § 16.

Reference in text. The Railroad Unemployment Insurance Act, referred to in this section, is codified as 45 U.S.C. § 351 et seq.

Amendments--1961. Substituted "Commissioner" for "board" preceding "may make".

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "may make".

§ 1318. Reciprocal benefit arrangements.

  1. The Commissioner is hereby authorized to enter into arrangements with the appropriate agencies of other states or the federal government whereby potential rights to benefits accumulated under the unemployment compensation laws of the several states or under such law of the federal government, or both, may constitute the basis for the payment of benefits through a single appropriate agency under terms which the Commissioner finds will be fair and reasonable as to all affected interests and will not result in any substantial loss to the Fund, and the Commissioner is authorized to reimburse such state or federal agency for such benefits as may be paid by that agency upon the basis of wages received in employment subject to this chapter or to receive from such state or federal agency such amounts as may be paid from the Fund upon the basis of wages received in employment subject to the laws of such state or of the federal government.
  2. The Commissioner shall participate in any arrangements for the payment of compensation on the basis of combining an individual's wages and employment covered under this chapter with his wages and employment covered under the unemployment compensation laws of other states which are approved by the Secretary of Labor of the United States in consultation with the state unemployment compensation agencies as reasonably calculated to assure the prompt and full payment of compensation in such situation and which include provisions for:
    1. applying the base period of a single state law to a claim involving the combining of an individual's wages and employment covered under two or more state unemployment compensation laws; and
    2. avoiding the duplicate use of wages and employment by reason of such combining.
  3. Reimbursements paid from the Fund pursuant to this section shall be deemed to be benefits for the purposes of this chapter, except that no charge on account of said reimbursements shall be made to an employer's experience rating record under subsection 1325(a) of this title. Benefits paid from the Fund to an individual, under arrangements entered into pursuant to this section, shall not be charged to an employer's experience rating record under subsection 1325(a) of this title when such benefits would not have been payable to the individual but for this section because of lack of wages in subject employment necessary to qualify for benefits under section 1338 of this title.

    Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1969, No. 189 (Adj. Sess.), § 1, eff. April 9, 1970; 1971, No. 77 , § 2, eff. Dec. 31, 1971.

History

Source. V.S. 1947, § 5360. 1943, No. 121 , § 5. 1939, No. 181 , § 17. 1937, No. 171 , § 8. 1936, No. 1 (Sp. Sess.), § 10(n).

Amendments--1971. Subsec. (b): Section amended generally.

Amendments--1969 (Adj. Sess.). Designated existing provisions of section as subsec. (a), deleted the second sentence of that subsection and added subsecs. (b) and (c).

Amendments--1961. Substituted "commissioner" for "board" throughout the section.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

ANNOTATIONS

1. Interstate agreements.

Under this section commission is authorized to enter into interstate arrangements for determination and payment of interstate claims. 1946-48 Op. Atty. Gen. 352.

Cited. Vennell v. Department of Employment Security, 141 Vt. 282, 449 A.2d 899 (1982).

§ 1319. Agreements for collection and payment of contributions.

Notwithstanding the provisions of subdivision 1301(6)(A) of this title, the Commissioner is authorized to enter into reciprocal agreements with the appropriate agencies of other states or the federal government adjusting the collecting and payment of contributions by employers for services of individuals not performed wholly within the jurisdiction of this State. Under the agreements, services may be agreed to be considered for all purposes, in the Commissioner's discretion, as wholly within or wholly outside of the jurisdiction of this State.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 2021, No. 20 , § 221.

History

Source. V.S. 1947, § 5361. 1943, No. 121 , § 5. 1939, No. 181 , § 17. 1937, No. 171 , § 8(h). 1936, No. 1 (Sp. Sess.), § 10(h).

Amendments--2021. Section amended generally.

Amendments--1961. Substituted "commissioner" for "board" preceding "also is authorized" and preceding "so desires".

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "also is authorized" and preceding "so desires".

§ 1320. Investigations; general powers.

  1. The Commissioner is authorized to make such investigations, secure and transmit such information, make available such services and facilities, and exercise such of the other powers provided herein with respect to the administration of this chapter as the Commissioner deems necessary or appropriate to facilitate the administration of any unemployment compensation or public employment service law, and in like manner, to accept and utilize information, services, and facilities made available to this State by any agency charged with the administration of any such other unemployment compensation or public employment service law.  To the extent permissible under the laws and constitution of the United States, the Commissioner of Labor is authorized to enter into or cooperate in arrangements whereby facilities and services provided under this chapter and facilities and services provided under the unemployment compensation law of any foreign government, may be utilized for the taking of claims and the payment of benefits under this chapter, or under a similar law of such government.
  2. On request of an agency which administers an employment security law of another state or of a foreign government, and which has found in accordance with the provisions of such law that an individual is liable to repay benefits received under such law, the Commissioner may collect from the individual the amount of such benefits to be refunded to such agency, and such amounts may be collected by civil action in the name of the Commissioner acting as agent for such agency.
  3. Records, with any necessary authentication thereof, required in the prosecution of any criminal action brought by another state or foreign government for misrepresentation to obtain benefits under the law of this State shall be made available to the agency administering the employment security law of any such state or foreign government for the purpose of such prosecution.
  4. The Commissioner may begin and prosecute civil proceedings in any other state to collect contributions, penalties, and interest legally due under this chapter.  The officials of other states which extend a like comity to this State may sue for the collection of contributions, interest, and penalties imposed by those other states, in the courts of this State; in any such case the Commissioner of Labor of this State may through his or her legal assistant, begin and conduct the suit for the other state. The courts of this State shall recognize and enforce liability for those contributions, interest, and penalties imposed by other states which extend a like comity to this State.
  5. The Commissioner may enter into or cooperate in arrangements or reciprocal agreements with authorized agencies of other states by which:
    1. overpayments of benefits as determined under this chapter may be recovered by offset from benefits otherwise payable under the unemployment compensation law of another state; and
    2. overpayments of benefits as determined under the unemployment compensation law of another state may be recovered by offset from benefits otherwise payable under this chapter.

      Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1967, No. 88 , eff. April 12, 1967; 1981, No. 66 , § 5(b), eff. May 1, 1981; 1991, No. 183 (Adj. Sess.), § 2; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Source. 1953, No. 60 . V.S. 1947, § 5362. 1943, No. 121 , § 5. 1939, No. 181 , § 17. 1937, No. 171 , § 8. 1936, No. 1 (Sp. Sess.), § 10(h).

Revision note. Undesignated paragraphs were designated as subsecs. (a)-(d) to conform section to V.S.A. style.

In the first sentence, substituted "he" for "it" preceding "deems necessary" in light of changes made by 1961, No. 210 , § 15.

Amendments--2005 (Adj. Sess.) Substituted "Commissioner of Labor" for "commissioner of employment and training" in subsections (a) and (d).

Amendments--1991 (Adj. Sess.). Subsec. (e): Added.

Amendments--1981. Substituted "and training" for "security" following "commissioner of employment" in the second sentence of the first paragraph and in the second sentence of the fourth paragraph.

Amendments--1967. Rewrote the second paragraph and added the fourth paragraph.

Amendments--1961. Substituted "commissioner" for "board" and "commissioner of employment security" for "employment security board" throughout the section.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" and "employment security board" for "unemployment compensation commission" throughout the section.

§ 1321. Contributions; taxable wage base changes.

  1. Payment of Contributions.  Contributions shall accrue and become payable by each employer for each calendar year in which he or she is subject to this chapter, with respect to wages paid for employment, as defined in subdivision 1301(6) of this title, occurring during such calendar year, except as otherwise provided in this section. The contributions shall become due and be payable at such time and in such installments as the Board prescribes.
  2. Base of Contributions.  Subsequent to December 31, 1982, the term "wages" shall not include that part of remuneration which, after remuneration equal to $8,000.00 has been paid in a calendar year to an individual by an employer with respect to employment during a calendar year, unless that part of the remuneration is subject to a tax under a federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund. For the period January 1, 2010, through December 31, 2010, the term "wages" shall not include that part of remuneration which, after remuneration equal to $10,000.00 has been paid in a calendar year to an individual by an employer with respect to employment during a calendar year, unless that part of the remuneration is subject to a tax under a federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund. The term "wages" shall not include that part of remuneration which, after remuneration equal to $13,000.00 on January 1, 2011, and $16,000.00 on January 1, 2012, has been paid in a calendar year to an individual by an employer with respect to employment during a calendar year, unless that part of the remuneration is subject to a tax under a federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund. After January 1, 2012, whenever the Unemployment Compensation Fund has a positive balance and all advances made to the State Unemployment Compensation Fund pursuant to Title XII of the Social Security Act have been repaid as of June 1, the base of contribution amount shall be adjusted on January 1 of the following year by the same percentage as any increase in the State annual average wage as calculated by subsection 1338(g) of this title. When the unemployment contribution rate schedule established by subsection 1326(e) of this title is reduced to schedule III, the base of contribution amount shall be reduced by $2,000.00 on January 1 of the following year and shall be adjusted annually thereafter on January 1 of the following year by the same percentage as any increase in the State annual average wage as calculated by subsection 1338(g) of this title. When the unemployment contribution rate schedule established by subsection 1326(e) of this title is reduced to schedule I, the base of contribution amount shall be reduced by $2,000.00 on January 1 of the following year and shall be adjusted annually thereafter on January 1 of the following year by the same percentage as any increase in the State annual average wage as calculated by subsection 1338(g) of this title. For the purposes of this subsection:
    1. Any employer who acquired the entire or a distinct and severable portion of the organization, trade, or business of an employer shall be treated as a single unit with its predecessor for the calendar year in which such acquisition occurs; and
    2. The term employment shall include service constituting employment under any unemployment compensation law of another state.
    1. Financing benefits paid to employees of nonprofit organizations.  Benefits paid to employees of nonprofit organizations shall be financed in accordance with the provisions of this subsection. For the purposes of this subsection, a nonprofit organization is an organization (or group of organizations) described in Section 501(c)(3) of the U.S. Internal Revenue Code which is exempt from income tax under Section 501(a) of such Code. (c) (1)  Financing benefits paid to employees of nonprofit organizations.  Benefits paid to employees of nonprofit organizations shall be financed in accordance with the provisions of this subsection. For the purposes of this subsection, a nonprofit organization is an organization (or group of organizations) described in Section 501(c)(3) of the U.S. Internal Revenue Code which is exempt from income tax under Section 501(a) of such Code.
    2. Liability for contributions and election of reimbursement.  Any nonprofit organization which, pursuant to subdivision 1301(5)(B)(i) of this title, is, or becomes, subject to this chapter on or after January 1, 1972 shall pay contributions under the provisions of this section, unless it elects, in accordance with this subsection, to pay to the Commissioner, for the Unemployment Fund, an amount equal to the amount of regular benefits and of one-half of the extended benefits paid, that is attributable to service in the employ of such nonprofit organization, to individuals for weeks of unemployment which begin during the effective period of such election.
      1. Any nonprofit organization which is, or becomes, subject to this chapter on January 1, 1972 may elect to become liable for payments in lieu of contributions for a period of not less than one calendar year beginning with January 1, 1972 provided it files with the Commissioner a written notice of its election within the 30-day period immediately following such date or within a like period immediately following April 16, 1971, whichever occurs later.
      2. Any nonprofit organization which becomes subject to this chapter after January 1, 1972 may elect to become liable for payments in lieu of contributions for a period of not less than 12 months beginning with the date on which such subjectivity begins by filing a written notice of its election with the Commissioner not later than 30 days immediately following the date of the determination of such subjectivity.
      3. Any nonprofit organization which makes an election in accordance with subdivisions (c)(2)(A) and (B) of this section will continue to be liable for payments in lieu of contributions until it files with the Commissioner a written notice terminating its election not later than 30 days prior to the beginning of the calendar year for which such termination shall first be effective.
      4. Any nonprofit organization which has been paying contributions under this chapter for a period subsequent to January 1, 1972 may change to a reimbursable basis by filing with the Commissioner not later than 30 days prior to the beginning of any calendar year a written notice of election to become liable for payments in lieu of contributions.  Such election shall not be terminable by the organization for that year and the next year.
      5. The Commissioner may for good cause extend the period within which a notice of election, or a notice of termination, must be filed and may permit an election to be retroactive but not any earlier than with respect to benefits paid after December 31, 1969.
      6. The Commissioner, in accordance with such rules as the Board may prescribe, shall notify each nonprofit organization of any determination which he or she may make of its status as an employer and of the effective date of any election which it makes and of any termination of such election.  Such determinations shall be subject to reconsideration and to appeal and review in accordance with the provisions of section 1337a of this title.
    3. Reimbursement payments.  Payments in lieu of contributions shall be made in accordance with the provisions of this subdivision, including either subdivision (A) or subdivision (B).
      1. At the end of each calendar quarter, or at the end of any other period as determined by the Commissioner, the Commissioner shall bill each nonprofit organization, or group of such organizations, which has elected to make payments in lieu of contributions for an amount equal to the full amount of regular benefits plus one-half of the amount of extended benefits paid during such quarter or other prescribed period that is attributable to service in the employ of such organization.
        1. Each nonprofit organization that has elected payments in lieu of contributions may request permission to make such payments as provided in this subdivision.  Such method of payment shall become effective upon approval of the Commissioner. (B) (i) Each nonprofit organization that has elected payments in lieu of contributions may request permission to make such payments as provided in this subdivision.  Such method of payment shall become effective upon approval of the Commissioner.
        2. At the end of each calendar quarter, the Commissioner shall bill each nonprofit organization for an amount representing one of the following:
          1. For 1972, two-tenths of one percent of its total payroll for 1971.
          2. For years after 1972, such percentage of its total payroll for the immediately preceding calendar year as the Commissioner shall determine.  The determination shall be based each year on the average benefit costs attributable to service in the employ of nonprofit organizations during the preceding calendar year.
          3. For any organization which did not pay wages throughout the four calendar quarters of the preceding calendar year, such percentage of its payroll during that year as the Commissioner shall determine.
        3. At the end of each calendar year, the Commissioner may modify the quarterly percentage of payroll thereafter payable by the nonprofit organization in order to minimize excess or insufficient payments.
        4. At the end of each calendar year, the Commissioner shall determine whether the total of payments for such year made by a nonprofit organization is less than, or in excess of, the total amount of regular benefits plus one-half of the amount of extended benefits paid to individuals during such taxable year based on wages attributable to service in the employ of such organization.  Each nonprofit organization whose total payments for such year are less than the amount so determined shall be liable for payment of the unpaid balance to the Fund in accordance with subdivision (3)(C) of this subsection (c). If the total payments exceed the amount so determined for the taxable year, all or a part of the excess shall, at the election of the nonprofit organization, be refunded from the Fund or retained in the Fund as part of the payments which may be required for the next calendar year.
      2. Payment of any bill rendered under subdivision (2) or subdivision (3) of this subsection (c) shall be made not later than 30 days after the bill is mailed to the last known address of the nonprofit organization or is otherwise delivered to it, unless there has been an application for redetermination by the Commissioner or a petition for hearing before a referee in accordance with subdivision (3)(E) of this subsection (c).
      3. Payments made by any nonprofit corporation under the provisions of this section shall not be deducted or deductible, in whole or in part, from the remuneration of individuals in the employ of the organization.
      4. The amount due specified in any bill from the Commissioner shall be conclusive on the organization unless, not later than 30 days after the date of the bill, the organization files an application for reconsideration by the Commissioner, or a petition for a hearing before a referee, setting forth the grounds for such application or petition. The Commissioner shall promptly review and reconsider the amount due specified in the bill and shall thereafter issue a redetermination in any case in which such application for redetermination has been filed. Any such redetermination shall be conclusive on the organization unless, not later than 30 days after the date of the redetermination, the organization files a petition for a hearing before a referee, setting forth the grounds for the petition. Proceedings on the petition for a hearing before a referee on the amount of a bill rendered under this section or a redetermination of such amount shall be in accordance with the provisions of section 1331 of this title, and the decision of the referee shall be subject to the provisions of that section. Review of the decision of the referee by the Employment Security Board shall be in accordance with, and its decision shall be subject to, the provisions of section 1332 of this title.
      5. Any employer including the State of Vermont which makes payments in lieu of contributions under this section shall be subject to the provisions of sections 1314, 1322, 1328, 1329, 1334, and 1336 of this title as follows:
        1. that employer shall be liable for any reports as the Commissioner may require pursuant to sections 1314 and 1322 of this title;
        2. that employer shall be liable for any penalty imposed pursuant to sections 1314 and 1328 of this title;
        3. that employer shall be liable for the same interest on past due payments pursuant to subsection 1329(a) of this title;
        4. that employer shall be subject to a civil action for the collection of past due payments as if those payments were contributions pursuant to subsections 1329(b) and 1334(a) of this title; and
        5. that employer shall be subject to those actions for the collection of past due payments as if those payments were contributions pursuant to subsections 1329(c) and (d), 1334(b) and (c), and section 1336 of this title; however, those provisions shall not apply to the State of Vermont.
    4. Authority to terminate elections.  If any nonprofit organization is delinquent in making payments in lieu of contributions as required under this subsection, the Commissioner may terminate such organization's election to make payments in lieu of contributions as of the beginning of the next taxable year, and the termination shall be effective for that and the next taxable year.
    5. Allocation of benefit costs.  Each employer that is liable for payments in lieu of contributions shall pay to the Commissioner for the Fund the amount of regular benefits plus the amount of one-half of extended benefits paid that are attributable to service in the employ of such employer. If benefits paid to an individual are based on wages paid by more than one employer  and one or more of such employers are liable for payments in lieu of contributions, the amount payable to the Fund by each employer that is liable for such payments shall be determined in accordance with subdivisions (5)(A) and (B) of this subsection (c):
      1. Proportionate allocation when fewer than all base-period employers are liable for reimbursement.  If benefits paid to an individual are based on wages paid by one or more employers that are liable for payments in lieu of contributions and on wages paid by one or more employers who are liable for contributions, the amount of benefits payable by each employer that is liable for payments in lieu of contributions shall be an amount which bears the same ratio to the total benefits paid to the individual as the total base-period wages paid to the individual by such employer bear to the total base-period wages paid to the individual by all of his or her base-period employers.
      2. Proportionate allocation when all base-period employers are liable for reimbursement.  If benefits paid to an individual are based on wages paid by two or more employers that are liable for payments in lieu of contributions, the amount of benefits payable by each employer shall be an amount which bears the same ratio to the total benefits paid to the individual as the total base-period wages paid to the individual by the employer bear to the total base-period wages paid to the individual by all of his or her base-period employers.
    6. Group accounts.  Two or more employers that have become liable for payments in lieu of contributions, in accordance with the provisions of this section and section 1380 of this title, may file a joint application to the Commissioner for the establishment of a group account for the purpose of sharing the cost of benefits paid that are attributable to service in the employ of such employers. Each application shall identify and authorize a group representative to act as the group's agent for the purpose of this section. Upon his or her approval of the application, the Commissioner shall establish a group account for such employers effective as of the beginning of the calendar quarter in which he or she receives the application and shall notify the group's representative of the effective date of the account. The account shall remain in effect for not less than two years and thereafter until terminated at the discretion of the Commissioner or upon application by the group. Upon establishment of the account, each member of the group shall be liable for payments in lieu of contributions with respect to each calendar quarter in the amount that bears the same ratio to the total benefits paid in such quarter that are attributable to service performed in the employ of all members of the group as the total wages paid for service in employment by such member in such quarter bear to the total wages paid during such quarter for service performed in the employ of all members of the group. The Board shall prescribe regulations as it deems necessary with respect to applications for establishment, maintenance, and termination of group accounts that are authorized by this subdivision, for addition of new members to, and withdrawal of active members from, such accounts, and for the determination of the amounts that are payable under this section by members of the group and the time and manner of such payments.
    7. Notwithstanding any of the foregoing provisions of this section, any nonprofit organization that prior to January 1, 1969, paid contributions required by this section, and, pursuant to subsection (c) of this section, elects within 30 days after January 1, 1972, to make payments in lieu of contributions, shall not be required to make any such payment on account of any regular or extended benefits paid, on the basis of wages paid by such organization to individuals for weeks of unemployment which begin on and after the effective date of the election until the total amount of benefits equals the amount (1) by which the contributions paid by the organization with respect to the two-year period before the effective date of the election under subsection (b) of this section exceed (2) the total amount of unemployment benefits paid for the same period that were attributable to service performed in the employ of the organization and were charged to the experience rating record of the organization.
  3. In lieu of contributions required of employers subject to this chapter, the State of Vermont, including State hospitals but excluding any State institution of higher education, shall pay to the Commissioner, for the Unemployment Compensation Fund, an amount equal to the amount of benefits paid, including the full amount of extended benefits paid, attributable to service by individuals in the employ of the State. At the end of each calendar quarter, or at the end of any other period as determined by the Commissioner, the Commissioner shall bill the State for the amount of benefits paid during such quarter or other prescribed period that is attributable to service in the employ of the State. Subdivisions (c)(3)(C) through (3)(F), inclusive, and subdivisions (c)(5) and (6) of this section as they apply to nonprofit organizations shall also apply to the State of Vermont, except that the State shall be liable for all benefits paid, including the full amount of extended benefits paid, attributable to service in the employ of the State.
  4. Any municipality, any State institution of higher education, and any political  or governmental subdivisions or instrumentalities of the State shall pay contributions unless it elects to pay to the Commissioner for the Unemployment Compensation Fund, an amount equal to the amount of benefits paid, including the full amount of extended benefits paid, attributable to service by individuals in the employ of these entities. Subsections (a) and (b) and subdivisions (c)(3)(C) through (3)(F), inclusive, and subdivisions (c)(4) through (6), inclusive of this section as they apply to nonprofit organizations shall also apply to the entities designated in this subsection, except that these entities shall be liable for all benefits paid, including the full amount of extended benefits paid, attributable to service in the employ of these entities.
    1. Any entity designated in this subsection which is, or becomes, subject to this chapter on January 1, 1978 may elect to become liable for payments in lieu of contributions for a period of not less than one calendar year beginning with January 1, 1978 provided it files with the Commissioner a written notice of its election within the 30-day period immediately following that date.
    2. Any entity designated in this subsection which becomes subject to this chapter after January 1, 1978 may elect to become liable for payments in lieu of contributions for a period of not less than one calendar year following the date on which the subjectivity begins by filing a written notice of its election with the Commissioner not later than 30 days immediately following the date of the determination of that subjectivity.
    3. Any entity designated in this subsection which makes an election in accordance with subdivisions (1) and (2) of this subsection will continue to be liable for payments in lieu of contributions until it files with the Commissioner a written notice terminating its election not later than 30 days prior to the beginning of the calendar year for which the termination shall first be effective.
    4. Any entity designated in this subsection which has been paying contributions under this chapter for a period subsequent to January 1, 1978 may change to a reimbursable basis by filing with the Commissioner not later than 30 days prior to the beginning of any calendar year a written notice of election to become liable for payments in lieu of contributions. The election shall not be terminable by the organization for that year and the next year.
    5. The Commissioner may for good cause extend the period within which a notice of election, or a notice of termination, must be filed and may permit an election to be retroactive but not any earlier than with respect to benefits paid after the date that entity became subject to this chapter.
    6. The Commissioner shall notify each entity designated in this subsection of any determinations which he or she may make of its status as an employer and of the effective date of any election which it makes and of any termination of that election. The determination shall be subject to reconsideration and to appeal and review in accordance with the provisions of section 1337a of this title.
  5. Any employer who makes payments in lieu of contributions under the provisions of this section is considered to be self-insuring and shall pay to the Commissioner for the Unemployment Compensation Fund such amounts as the Commissioner finds to be due under this chapter, including benefits paid but denied on appeal or benefits paid in error which cannot be properly charged either against another employer who makes payments in lieu of contributions or against the experience-rating record of another employer who pays contributions. Benefits improperly paid where repayment by the claimant is ordered pursuant to subsection 1347(a) or (b) of this title will be credited to the employer's account when repayment from the claimant is actually received by the Commissioner.

    Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1963, No. 106 , § 1, eff. Jan. 1, 1964; 1971, No. 77 , § 3, eff. Dec. 31, 1971; 1977, No. 64 , §§ 8-11, 23; 1979, No. 120 (Adj. Sess.), § 7, eff. April 14, 1980; 1981, No. 86 , § 9, eff. May 10, 1981; 1983, No. 16 , §§ 3-5, eff. April 4, 1983; 1989, No. 132 (Adj. Sess.), § 4; 1991, No. 183 (Adj. Sess.), § 3; 2009, No. 2 (Sp. Sess.), § 1, eff. June 9, 2009; 2009, No. 124 (Adj. Sess.), § 2.

History

Source. 1953, No. 66 . 1951, No. 112 . 1949, No. 127 . V.S. 1947, § 5363. 1947, No. 196 , § 1. 1941, No. 148 , § 4. 1939, No. 180 , § 4. 1937, No. 171 , § 7. 1937, No. 170 , § 1. 1936, No. 1 (Sp. Sess.), § 7(a).

Reference in text. Sections 501(a) and 501(c)(3) of the Internal Revenue Code of the United States, referred to in the second sentence of subsec. (c)(1), are codified as 26 U.S.C. §§ 501(a) and 501(c)(3) respectively.

Section 1380 of this title, referred to in subdiv. (c)(6), was repealed by 1977, No. 64 , § 25(a).

2016. In subdiv. (c)(2)(A), substituted "April 16, 1971" for "the date of enactment of this act" to reflect the date that 1971, No. 77 , which added subdiv. (c)(2)(A), was enacted.

2013. In subsec. (f), deleted "but not limited to" following "including" in accordance with 2013, No. 5 , § 4.

Revision note - Substituted "this subdivision" for "this paragraph" at the end of the first sentence of subdiv. (c)(3)(B)(i) and for "this subsection" in the last sentence of subdiv. (c)(6) to conform references to V.S.A. style.

In subsec. (f), substituted "or against the experience-rating record of another employer who pays contributions" for "another employer's experience-rating record who pays contributions" at the end of the first sentence for purposes of clarity.

Amendments--2009 (Adj. Sess.) Section catchline: Added "; taxable wage base changes".

Subsec. (b): Added the third through sixth sentences in the introductory paragraph.

Amendments--2009 (Sp. Sess). Subsec. (b): Section amended generally.

Amendments--1991 (Adj. Sess.). Subdiv. (c)(3)(E): Substituted "redetermination" for "bill" following "date of the" in the third sentence.

Amendments--1989 (Adj. Sess.). Subdiv. (c)(3)(E): Substituted "30 days after the date of the bill" for "fifteen days after the bill was mailed to its last known address or otherwise delivered to it" preceding "the organization files" in the first sentence and for "fifteen days after the redetermination was mailed to its last known address or otherwise delivered to it" preceding "the organization files" in the third sentence.

Amendments--1983. Subsec. (b): Substituted "1976" for "1971" preceding "through December 31", "1982" for "1976" thereafter and "$6,000.00" for "$4,200.00" following "equal to" in the first sentence and "1982" for "1976" following "December 31" and "$8,000.00" for "$6,000.00" following "equal to" in the second sentence.

Subsec. (e): Inserted "or instrumentalities" following "governmental subdivisions" in the first sentence.

Subsec. (f): Added.

Amendments--1981. Subdiv. (c)(3)(F): Substituted "sections 1314 and 1328" for "section 1328" in par. (ii).

Amendments--1979 (Adj. Sess.). Subdiv. (c)(2)(A): Added.

Subdiv. (c)(2)(B): Added.

Subdiv. (c)(2)(C): Added.

Subdiv. (c)(2)(D): Added.

Subdiv. (c)(2)(E): Added.

Subdiv. (c)(2)(F): Added.

Amendments--1977. Subsection (a): Added the second sentence.

Subsec. (b): Section amended generally.

Subdiv. (c)(2): Substituted "section 1301(5)(B)(i)" for "section 1301(5)(B)" following "pursuant to" and deleted subdivs. (A)-(F).

Subdiv. (c)(3)(F): Section amended generally.

Subsec. (d): Section amended generally.

Subsec. (e): Added.

1977, No. 64 , § 26(a) provided that section 8 of the act, which amended subsecs. (a) and (b), would take effect Jan. 1, 1977.

1977, No. 64 , § 26(c) provided that sections 9-11 of the act, which amended subsecs. (c)(2), (c)(3)(F), and (d) respectively, would take effect Jan. 1, 1978.

1977, No. 64 , § 26(c) provided that section 23 of the act, which added subsec. (e), would take effect Jan. 1, 1978.

Amendments--1971. Catchline: Deleted "basis" following "Contributions".

Subsec. (a): Substituted "Payment of Contributions. Contributions" for "On and after January 1, 1936, contributions" at the beginning of the subsection and added "except as otherwise provided in this section" at the end of the subsection.

Subsec. (b): Section amended generally.

Subsec. (c): Added.

Subsec. (d): Added.

Amendments--1963. Subsec. (b): Section amended generally.

Amendments--1959 (Adj. Sess.). Subsec. (b): Substituted "board" for "commission" preceding "may prescribe" at the end of the subsection.

Effective date of amendments--1983. 1983, No. 16 , §§ 3-5 provided that amendments to subsecs. (b) and (e) and the addition of subsec. (f) would take effect from passage, April 4, 1983. Section 3 of the Act also provided that subsec. (b), as amended, would affect contributions on wages paid after December 31, 1982.

Cross References

Cross references. Rate of contribution, see § 1324 of this title.

ANNOTATIONS

Analysis

1. Liability.

"Valid claim" for unemployment compensation benefits was established by a determination of monetary eligibility at the time that an initial claim was filed, at which time the liability of the employer was established; a reimbursable employer was then responsible for payments towards the employee's unemployment compensation without the need for any new adjudication of that liability. Windham County Sheriff's Dep't v. Dep't of Labor, 195 Vt. 1, 86 A.3d 410 (2013).

Former employee who made a "valid claim" when he filed for unemployment compensation benefits continued to hold onto it, although temporary disqualification was then imposed, and upon his satisfaction of the temporary disqualification requirements he was eligible for benefits, such that the employer was automatically liable for reimbursement payments; the employer's obligation was governed by the law in force at the time of the initial claim. Windham County Sheriff's Dep't v. Dep't of Labor, 195 Vt. 1, 86 A.3d 410 (2013).

By disbursing all the funds awarded to a former employee, the Employment Security Board deprived a town employer of any financial stake in the outcome of its appeal from the Board's decision because, even if the town were to prevail, the Department of Employment and Training would exercise its statutory authority to collect reimbursement from the town for all the benefits "paid but denied on appeal" to the employee, and the town did not need to fear further liability as a result of the Board's decision because of the provision of 21 V.S.A. § 1353 prohibiting the collateral use of "[a]ny determination, redetermination, finding of fact, conclusion of law, decision, final order, or final judgment entered or made by . . . the employment security board" in any "separate or subsequent action"; accordingly, the town's appeal was moot for lack of any stake in its outcome. Holton v. Department of Employment and Training, 178 Vt. 147, 878 A.2d 1051 (April 1, 2005).

By enacting the provision making noncontributing employers liable to the Department of Employment and Training for "benefits paid but denied on appeal," the Legislature expressly contemplated that benefits would be paid pending appellate review, and that benefits paid might later be denied. Holton v. Department of Employment and Training, 178 Vt. 147, 878 A.2d 1051 (April 1, 2005).

No contribution by employer to State Fund is required by this section on account of supplemental benefit payments. 1956-58 Op. Atty. Gen. 212.

2. Notice and hearing.

Where reimbursable municipal employer was not notified that former employees had filed claims for unemployment benefits until it received notices that its account would be charged for benefits paid to claimants, opportunity for a hearing after the claims had been granted did not comply with due process. City of Burlington v. Department of Employment & Training, 148 Vt. 151, 530 A.2d 573 (1987).

3. Construction with other laws .

Provision making noncontributing employers liable to the Department of Employment and Training for "benefits paid but denied on appeal" does not conflict with the right of appeal to the Supreme Court in 21 V.S.A. § 1349; furthermore, the latter provision applies generally to all parties, including employees, contributing employers, and noncontributing employers and of these three, only noncontributing employers will face potential mootness problems. Holton v. Department of Employment and Training, 178 Vt. 147, 878 A.2d 1051 (April 1, 2005).

Requirement that noncontributing employers reimburse the Department of Employment and Training for any benefits "paid but denied on appeal" does not violate the equal protection clause of the United States Constitution. Holton v. Department of Employment and Training, 178 Vt. 147, 878 A.2d 1051 (April 1, 2005).

4. Reimbursement of fund.

Because under the provision governing employers who chose to reimburse the Unemployment Compensation Fund for benefits paid rather than contribute to the Fund, employers who chose reimbursement were not entitled to benefits paid but denied on appeal, appellant had no due process property interest in the benefits paid to a former employee in the window between the allowance of benefits and the reversal of that decision. Chittenden County Sheriff's Dep't v. Dep't of Labor, 211 Vt. 377, 228 A.3d 85 (2020).

Because appellant chose to reimburse the Unemployment Compensation Fund for benefits paid rather than to contribute to the Fund, and the provision governing such employers mandated that they compensate the Fund for benefits that were paid but subsequently denied on appeal, the Vermont Employment Security Board was bound to find appellant responsible for the benefits paid but denied on appeal. As a result, there was no discretion on the Board's part and no delegation of legislative power to the Board; accordingly, no violation of separation of powers and no denial of due process or equal protection could have resulted from the same. Chittenden County Sheriff's Dep't v. Dep't of Labor, 211 Vt. 377, 228 A.3d 85 (2020).

Cited. In re Cadieux, 129 Vt. 624, 285 A.2d 738 (1971); Grenafege v. Department of Employment Security, 134 Vt. 288, 357 A.2d 118 (1976); Times-Argus Association, Inc. v. Department of Employment & Training, 146 Vt. 320, 503 A.2d 129 (1985); Sirloin Saloon of Shelburne, Rutland, & Manchester, Inc. v. Department of Employment & Training, 151 Vt. 123, 558 A.2d 226 (1989).

§ 1321a. [Repealed.].

History

Former § 1321a. Former § 1321a, relating to supplemental contributions, was derived from 1989, No. 241 (Adj. Sess.), § 1, and was repealed on June 30, 1991 pursuant to 1989, No. 241 (Adj. Sess.). § 4(b).

§ 1322. Reports; liability.

  1. Every employer shall file with the Commissioner periodic reports on such forms and at such times as the Commissioner may prescribe to disclose his or her liability for contributions under this chapter.
  2. Every employer subject to this chapter who sells in bulk 50 percent or more of his or her assets, including any stock of goods, wares, or merchandise of any kind, fixtures, machinery, equipment, buildings, or real estate, when such sale constitutes the sale of the employer's business to another shall give the Commissioner 10 days' notice of the sale before the completion of the transfer of the property. The employer shall file all contribution reports with the Commissioner to the date of the proposed transfer of property and pay all contributions, interest, and penalties due and payable thereon.  The employer shall also file the detailed quarterly wage report required by section 1314a of this title (subsequent to June 30, 1986) covering employee wages to date of proposed transfer.  When the reports are filed the Commissioner shall furnish to the employer within 10 days thereafter a certificate showing that all reports have been filed and contributions, interest, and penalties paid to the date of the proposed transfer.  If the certificate is not furnished by the Commissioner within 10 days no liability may thereafter be imposed upon the purchaser.  The employer shall present the certificate to the purchaser of the property.  The failure of the purchaser to require the certificate makes the purchaser liable to the Commissioner for the unpaid contributions, interest, and penalties owed by the employer in an amount not to exceed the reasonable value of the assets purchased.  The liability imposed upon the purchaser by this subsection shall be secondary to the liability of the employer.
  3. Subsection (b) of this section shall not apply to sales made under any order of court or to any sales made by assignees for the benefit of creditors, executors, administrators, receivers, or any public officer in his or her official capacity or by any officer of the court or to any other transfer excepted under Uniform Commercial Code, 9A V.S.A. § 6-103.
  4. An employing unit which has been liable otherwise than by its election to pay contributions as an employer under this chapter for any calendar year shall file such reports and pay such contributions for the next succeeding calendar year as the Commissioner may prescribe.

    Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1967, No. 226 (Adj. Sess.), § 1, eff. Jan. 17, 1968; 1985, No. 50 , § 7.

History

Source. V.S. 1947, § 5364. 1945, No. 141 , § 2. 1941, No. 148 , § 4.

Reference in text. Section 6-103 of the Uniform Commercial Code, Title 9A, referred to in subsec. (c), was repealed by 1993, No. 158 (Adj. Sess.), § 17, eff. Jan. 1, 1995.

2016. In subsec. (b), deleted "but not limited to" following "including" in accordance with 2013, No. 5 , § 4.

Amendments--1985. Subsec. (b): Inserted the third sentence.

Amendments--1967 (Adj. Sess.). Section amended generally.

Amendments--1961. Substituted "commissioner" for "board" throughout the section.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

Cross References

Cross references. Penalty for failure to file contribution report, see § 1328 of this title.

Transfer of experience-rating record upon sale of business, see § 1325(b) of this title.

ANNOTATIONS

Cited. Grenafege v. Department of Employment Security, 134 Vt. 288, 357 A.2d 118 (1976).

§ 1322a. Out-of-state or nonresident subcontractors.

Any contractor, who is or becomes an employer under the provisions of this chapter, who contracts with any out-of-state or nonresident subcontractor, who also is or becomes an employer under the provisions of this chapter, shall withhold sufficient monies on said contract to guarantee that all contributions, penalties, and interest are paid upon completion of said contract, or shall require of said subcontractor a good and sufficient bond guaranteeing payment of all contributions, penalties, and interest due or to become due with respect to wages paid for employment on said contract. Failure to comply with the provisions of this section shall render said contractor directly liable for such contributions, penalties, and interest due from said subcontractor and the Commissioner shall have all of the remedies of collection against said contractor under the provisions of this chapter as though the services in question were performed directly for said contractor. Any such contractor who shall become liable for and pay contributions with respect to individuals in the employ of any such subcontractor may recover the same from such subcontractor. For the purpose of this section, the words "contractor" and "subcontractor" mean and include individuals, partnerships, firms or corporations, or other associations of persons engaged in the business of construction, alteration, repairing, dismantling, or demolition of buildings, roads, bridges, viaducts, sewers, water and gas mains, streets, disposal plants, water filters, tanks and towers, airports, dams, water wells, pipelines, and every other type of structure, project, development, or improvement coming within the definition of real property.

Added 1965, No. 115 , eff. June 22, 1965.

§ 1323. Termination of coverage; agreement by employee to make contribution.

  1. An employing unit shall cease to be an employer subject to this chapter only as of the first day of January of any calendar year, if it files with the Commissioner, on or before March 31 next following, a written application for termination of coverage, and the Commissioner finds that such employing unit was not an employer during the preceding calendar year, but these requirements may be waived by the Commissioner for good cause.
  2. The Commissioner may terminate coverage of any employing unit on his or her own motion when he or she finds that the employing unit has not selected coverage in accordance with subdivision 1301(5)(E) of this title and:
    1. that the employing unit has not been an employer for the period of one year immediately preceding; or
    2. that the person who is the employing unit is deceased; or
    3. that the employing unit has ceased to employ at least one person within the State.
  3. Any agreement by an individual in his or her employ to pay the whole or any portion of the employer contributions required by this chapter shall be void and no employer shall make any deduction for such purpose from the wages or salary of any individual in his or her employ.

    Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1969, No. 43 .

History

Source. V.S. 1947, § 5365. 1945, No. 141 , § 2. 1943, No. 123 , § 3. 1937, No. 170 , § 1.

2016. In subsec. (b), substituted "subdivision 1301(5)(E)" for "subdivision 1301(5)(B)" to correct cross-reference.

2003. In subsec. (b), substituted "subdivision 1301(8)(B) of this title" for "section 1301(5)(B)" to conform reference to V.S.A. style and to reflect the renumbering of the subdivisions in that section.

Amendments--1969. Designated first sentence of existing provisions as subsec. (a), deleted "only" preceding "if it files" in that subsection, added subsec. (b) and designated second sentence of existing provisions as subsec. (c).

Amendments--1961. Substituted "commissioner" for "board" throughout the section.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

Cross References

Cross references. Employees not to pay for workers' compensation insurance, see § 699 of this title.

§ 1324. Rate of contribution.

  1. For contribution rate years beginning prior to July 1, 1987, the standard rate of contributions shall be five and four-tenths percent.  Each employer who has not been subject to this chapter for a sufficient period of time to have his or her rate computed under section 1326 of this title shall pay contributions at a rate, not exceeding five and four-tenths percent, that is the higher of (1) one percent or (2) that percent represented by rate class 11 in applicable rate schedule determined pursuant to section 1326 of this title, in effect with respect to the calendar quarter for which contributions are payable.
  2. For contribution rate years beginning July 1, 1987 and subsequent thereto:
    1. the standard rate of contributions shall be five and four-tenths percent;
    2. each employer who has not been subject to this chapter for a sufficient period of time to have the rate computed under section 1326 of this title shall pay contributions at the rate of one percent, except that foreign corporations classified in the three-digit North American Industry Classification System Code as 236, 237, or 238 shall pay contributions at a rate equal to the average rate as of the most recent computation date paid by all employers so classified.

      Amended 1971, No. 77 , § 4, eff. Dec. 31, 1971; 1977, No. 64 , § 12, eff. Jan. 1, 1977; 1983, No. 124 (Adj. Sess.), § 1; 1987, No. 81 ; 2001, No. 56 , § 3; 2003, No. 131 (Adj. Sess.), § 1.

History

Source. V.S. 1947, § 5366. 1936, No. 1 (Sp. Sess.), § 7(b).

Amendments--2003 (Adj. Sess.) Subdiv. (b)(2): Amended generally.

Amendments--2001. Subdiv. (b)(2): Substituted "classification system" for "'Standard Industrial Classification Manual'" and "sector level" for "second digit provided in the Standard Industrial Classification Code".

Amendments--1987. Designated existing provisions of section as subsec. (a), added "For contribution rate years beginning prior to July 1, 1987" preceding "the standard" at the beginning of that subsection, and added subsec. (b).

Amendments--1983 (Adj. Sess.). Section amended generally.

Amendments--1977. Designated existing provisions of section as subsec. (a) and added subsecs. (b)-(d).

Amendments--1971. Section amended generally.

Cross References

Cross references. Reduction of rate of contribution, see § 1327 of this title.

ANNOTATIONS

Cited. In re Smith, Bell & Hauck Real Estate, Inc., 132 Vt. 295, 318 A.2d 183 (1974); Sirloin Saloon of Shelburne, Rutland, & Manchester, Inc. v. Department of Employment & Training, 151 Vt. 123, 558 A.2d 226 (1989).

§ 1325. Employers' experience-rating records; disclosure to successor entity.

    1. The Commissioner shall maintain an experience-rating record for each employer. Benefits paid shall be charged against the experience-rating record of each subject employer who provided base-period wages to the eligible individual. Each subject employer's experience-rating charge shall bear the same ratio to total benefits paid as the total base-period wages paid by that employer bear to the total base-period wages paid to the individual by all base-period employers. The experience-rating record of an individual subject base-period employer shall not be charged for benefits paid to an individual under any of the following conditions: (a) (1)  The Commissioner shall maintain an experience-rating record for each employer. Benefits paid shall be charged against the experience-rating record of each subject employer who provided base-period wages to the eligible individual. Each subject employer's experience-rating charge shall bear the same ratio to total benefits paid as the total base-period wages paid by that employer bear to the total base-period wages paid to the individual by all base-period employers. The experience-rating record of an individual subject base-period employer shall not be charged for benefits paid to an individual under any of the following conditions:
      1. The individual's employment with that employer was terminated under disqualifying circumstances.
      2. The individual's employment or right to reemployment with that employer was terminated by retirement of the individual pursuant to a retirement or lump-sum retirement pay plan under which the age of mandatory retirement was agreed upon by the employer and its employees or by the bargaining agent representing those employees.
      3. As of the date on which the individual filed an initial claim for benefits, the individual's employment with that employer had not been terminated or reduced in hours.
      4. The individual was employed by that employer as a result of another employee taking leave under chapter 5, subchapter 4 of this title, and the individual's employment was terminated as a result of the reinstatement of the other employee under chapter 5, subchapter 4 of this title.
      5. [Repealed.]
      6. The individual voluntarily separated from that employer to accompany a spouse who is on active duty with the U.S. Armed Forces or who holds a commission in the U.S. Foreign Service and is assigned overseas as provided by subdivision 1344(a)(2)(A) of this chapter.
      7. [Repealed.]
      8. [Repealed.]
    2. If an individual's unemployment is directly caused by a major disaster declared by the President of the United States pursuant to 42 U.S.C. § 5122 and the individual would have been eligible for federal disaster unemployment assistance benefits but for the receipt of regular benefits, an employer shall be relieved of charges for benefits paid to the individual with respect to any week of unemployment occurring due to the natural disaster up to a maximum amount of four weeks.
    3. [Repealed.]
    1. Disclosure of contribution rate to successor entity.  Any individual or employing unit who in any manner succeeds to or acquires the organization, trade, or business or substantially all of the assets of any employer who has been operating the business within two weeks prior to the acquisition, except any assets retained by the employer incident to the liquidation of the employer's obligations, and who thereafter continues the acquired business shall be considered to be a successor to the predecessor from whom the business was acquired and, if not already an employer before the acquisition, shall become an employer on the date of the acquisition. The Commissioner shall transfer the experience-rating record of the predecessor employer to the successor employer. If the successor was not an employer before the date of acquisition, the successor's rate of contribution for the remainder of the rate year shall be the rate applicable to the predecessor employers with respect to the period immediately preceding the date of acquisition if there was only one predecessor or there were only predecessors with identical rates. If the predecessors' rates were not identical, the Commissioner shall determine a rate based on the combined experience of all the predecessor employers. If the successor was an employer before the date of acquisition, the contribution rate that was assigned to the successor for the rate year in which the acquisition occurred will remain assigned to the successor for the remainder of the rate year, after which the experience-rating record of the predecessor shall be combined with the experience rating of the successor to form the single employer experience-rating record of the successor. At any time prior to the issuance of the certificate required by subsection 1322(b) of this chapter, an employing unit shall, upon request of a potential successor, disclose to the potential successor its current experience-rating record. (b) (1)  Disclosure of contribution rate to successor entity.  Any individual or employing unit who in any manner succeeds to or acquires the organization, trade, or business or substantially all of the assets of any employer who has been operating the business within two weeks prior to the acquisition, except any assets retained by the employer incident to the liquidation of the employer's obligations, and who thereafter continues the acquired business shall be considered to be a successor to the predecessor from whom the business was acquired and, if not already an employer before the acquisition, shall become an employer on the date of the acquisition. The Commissioner shall transfer the experience-rating record of the predecessor employer to the successor employer. If the successor was not an employer before the date of acquisition, the successor's rate of contribution for the remainder of the rate year shall be the rate applicable to the predecessor employers with respect to the period immediately preceding the date of acquisition if there was only one predecessor or there were only predecessors with identical rates. If the predecessors' rates were not identical, the Commissioner shall determine a rate based on the combined experience of all the predecessor employers. If the successor was an employer before the date of acquisition, the contribution rate that was assigned to the successor for the rate year in which the acquisition occurred will remain assigned to the successor for the remainder of the rate year, after which the experience-rating record of the predecessor shall be combined with the experience rating of the successor to form the single employer experience-rating record of the successor. At any time prior to the issuance of the certificate required by subsection 1322(b) of this chapter, an employing unit shall, upon request of a potential successor, disclose to the potential successor its current experience-rating record.
    2. Notwithstanding the provisions of subdivision (1) of this subsection, an individual or employing unit who in any manner succeeds to or acquires the organization, trade, or business or substantially all of the assets of any employing unit who was an employer before the date of acquisition and whose currently assigned contribution rate is higher than that currently assigned to the acquiring individual or employing unit shall not be treated as a successor.
  1. Nothing in this section shall be construed to grant to any employer or to individuals performing services for the employer prior claims or rights to the amounts paid by the employer into the Fund.
  2. Notwithstanding any other provision of law, the following shall apply to assignment of rates and transfers of experience:
    1. If an employer transfers its trade or business, or a portion thereof, to another employer and, at the time of the transfer, there is substantially common ownership, management, or control of the two employers, the employment experience attributable to the transferred trade or business shall be transferred to the employer to whom such business is so transferred. The rates of both employers shall be recalculated and made effective immediately upon the date of the transfer of trade or business.
    2. Whenever a person who is not an employer under this chapter at the time it acquires the trade or business of an employer, the unemployment experience of the acquired business shall not be transferred to such person if the Commissioner finds that such person acquired the business solely or primarily for the purpose of obtaining a lower rate of contributions. Instead, that person shall be assigned the highest rate assignable under this chapter until being subject to this chapter for a sufficient period of time to have his or her rate computed under section 1326 of this title. In determining whether the business was acquired solely or primarily for the purpose of obtaining a lower rate of contribution, the Commissioner shall use objective factors that may include:
      1. the cost of acquiring the business;
      2. whether the person continued the business enterprise of the acquired business;
      3. how long that business enterprise was continued; and
      4. whether a substantial number of new employees was hired to perform duties unrelated to the business activity conducted prior to acquisition of the new business.
    3. If a person knowingly violates or attempts to violate subdivision (1) or (2) of this subsection or any other provision of this chapter related to determining the assignment of a contribution rate, or if a person knowingly advises another person in a way that results in a violation of those provisions, the person shall be subject to the following penalties:
      1. If the person is an employer, the person shall be assigned the highest rate assignable under this chapter for the rate year during which the violation or attempted violation occurred and the three rate years immediately following this rate year. If the person's business is already at the highest rate for any year, or if the amount of increase in the person's rate would be less than two percent for that year, a penalty rate of contributions of two percent of taxable wages shall be imposed for that year.
      2. If the person is not an employer, that person shall be subject to a civil penalty of not more than $5,000.00. A fine under this subdivision shall be deposited in the Contingent Fund established under section 1365 of this title.
      3. In addition to other penalties under this subdivision, a person who violates this section may be imprisoned not more than three years or fined not more than $5,000.00, or both.
    4. As used in this section:
      1. "Attempt to violate" means the intent to evade, misrepresentation, or willful nondisclosure.
      2. "Knowingly" means having actual knowledge of or acting with deliberate ignorance or reckless disregard of the prohibition.
      3. "Person" has the same meaning as in Section 7701(a)(1) of the Internal Revenue Code of 1986.
      4. "Trade or business" includes the employer's workforce.
    5. The Commissioner shall establish procedures, by rule, to identify the transfer or acquisition of a business for the purposes of this section.
  3. -(g)  [Repealed.]

    Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 132 , eff. May 19, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1963, No. 98 ; 1967, No. 262 (Adj. Sess.), § 1, eff. Feb. 28, 1968; 1969, No. 42 , § 1; 1977, No. 64 , § 13; 1981, No. 86 , § 10, eff. May 10, 1981; 1985, No. 50 , § 8; 1985, No. 146 (Adj. Sess.), § 1; 1987, No. 100 , § 1; 1989, No. 17 , eff. April 13, 1989; 1989, No. 47 , §§ 1, 2, eff. May 18, 1989; 1989, No. 83 , § 2; 1997, No. 101 (Adj. Sess.), §§ 7, 9; 2005, No. 41 , § 1; 2009, No. 118 (Adj. Sess.), § 1; 2011, No. 50 , § 9c, eff. July 1, 2011; 2013, No. 82 , § 1, eff. June 10, 2013; 2013, No. 173 (Adj. Sess.), § 9; 2017, No. 74 , § 49; 2019, No. 91 (Adj. Sess.), § 30, eff. March 30, 2020; 2019, No. 91 (Adj. Sess.), § 32, eff. Oct. 1, 2021; 2021, No. 51 , § 6, eff. June 1, 2021.

History

Source. 1957, No. 148 , § 1. 1955, No. 58 . 1951, No. 113 . V.S. 1947, § 5367. 1943, No. 123 , § 4. 1941, No. 155 , § 1. 1939, No. 179 , § 3. 1936, No. 1 (Sp. Sess.), § 7(c).

2013. In subdiv. (d)(4), substituted "As used in" for "For the purposes of" to conform to V.S.A. style.

Revision note - Subdiv. (f)(3), as enacted by 1989, No. 83 , § 2, was redesignated as subdiv. (f)(4) to avoid conflict with existing subdiv. (f)(3).

In the third sentence of subsec. (a), substituted "subdivisions (a)(1) or (a)(2) of section 1344 of this title" for "subdivisions (1), (2) or (3) of section 1344 of this title" to conform references to section 1344, as amended.

Amendments--2021. Subdiv. (a)(1)(G): Inserted "During calendar year 2020," at the beginning of the intro. para.

Subdiv. (a)(3): Amended generally.

Amendments--2019 (Adj. Sess.) Subdivs. (a)(1)(G), (a)(1)(H), and (a)(3): Added by 2019, No. 91 (Adj. Sess.), § 30.

Subdivs. (a)(1)(G), (a)(1)(H), and (a)(3): Repealed eff. October 1, 2021 by 2019, No. 91 (Adj. Sess.), § 32.

Amendments--2017. Subdiv. (a)(2): Deleted "natural" preceding "disaster declared".

Amendments--2013 (Adj. Sess.). Subdiv. (a)(1)(F): Added.

Amendments--2013. Deleted "employee paid $1,000.00 or less during base period" following "entity" in the section catchline and rewrote subsec. (a).

Amendments--2011. Catchline: Added ", employee paid $1,000.00 or less during base period" following "entity".

Subdiv. (a)(5): Added.

Amendments--2009 (Adj. Sess.) Section catchline: Added "; disclosure to successor entity" in the section catchline.

Subdiv. (b)(1): Added the first sentence, substituted "the business" for "his or her business" and "the employer's obligations" for "his or her obligations" in the second sentence, and "the successsor's rate" for "his or her rate" in the fourth sentence, and added the last sentence.

Amendments--2005. Section amended generally.

Amendments--1997 (Adj. Sess.). Designated the existing provisions of subsec. (b) as subdiv. (b)(1), added "who has been operating his or her business within two weeks prior to the acquisition" in the first sentence of that subdivision; added subdiv. (b)(2); and repealed subsec. (d), defining "most recent subject employer", and subsec. (e), relating to the assignment of charges against the experience-rating record of an employer.

Amendments--1989. Subsec. (f): Act No. 17 added "or" following "representing such employees" at the end of subdiv. (2) and added subdiv. (3).

Act No. 47 deleted "except as provided in subsection (g) of this section" following "base-period employers" in the second sentence of the introductory paragraph.

Act No. 83 added subdiv. (f)(3).

Subsec. (g): Repealed by Act No. 47.

Amendments--1987. Subsec. (b): Inserted "or her" preceding "obligations" in the first sentence, deleted the former third sentence, inserted "or her" preceding "rate of contribution" in the present third sentence and added the last sentence.

Amendments--1985 (Adj. Sess.). Subsec. (f): Added.

Subsec. (g): Added.

Amendments--1985. Subsec. (a): Inserted "with a benefit year beginning prior to January 3, 1988" preceding "shall" in the second sentence.

Subsec. (d): Added.

Subsec. (e): Added.

Amendments--1977. Subsec. (a): Substituted "$ 695.00" for "$ 595.00" preceding "or more" and preceding "in employment" in the second sentence.

Amendments--1969. Subsec. (a): Amended generally.

Amendments--1967 (Adj. Sess.). Section amended generally.

Amendments--1963. Substituted "$395.00" for "$295.00" preceding "or more" and preceding "in employment" in the second sentence.

Amendments--1961. Act No. 210 substituted "commissioner" for "board" throughout the section.

Act No. 132 substituted "$295.00" for "$175.00" preceding "or more" and preceding "in employment" in the second sentence and added the fifth sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

Effective date of repeal of subdivs. (a)(1)(G), (a)(1)(H), and (a)(3). 2019, No. 91 (Adj. Sess.), § 38(3), as amended by 2021, No. 51 , § 8, provides: "Secs. 32 and 33 shall take effect on the first day of the calendar quarter following the calendar quarter in which the state of emergency declared in response to COVID-19 pursuant to Executive Order 01-20 is terminated, provided that if the state of emergency is terminated within the final 30 days of a calendar quarter, Secs. 32 and 33 shall take effect on the first day of the second calendar quarter following the calendar quarter in which the state of emergency is terminated." The state of emergency declared in response to COVID-19 pursuant to Executive Order 01-20 ended on June 15, 2021. Therefore, subdivisions (a)(1)(G), (a)(1)(H), and (a)(3) were repealed effective October 1, 2021.

Retroactive effective date of amendment to subdivs. (a)(1)(G), (a)(1)(H), and (a)(3). 2020, No. 51 , § 17(a)(2) provides: "Notwithstanding 1 V.S.A. § 214, Sec. 8 (extension of sunset) shall take effect retroactively on March 31, 2021."

Relief from COVID-19-related unemployment benefit charges for calendar year 2021. 2020, No. 51 , § 7 provides: "(a) For calendar year 2021, an employer shall be relieved from charges against its unemployment insurance experience rating under 21 V.S.A. § 1325 for benefits paid to an individual because:

"(1)(A) the individual voluntarily separated from employment with the employer for one of the reasons set forth in 21 V.S.A. § 1344(a)(2)(A)(ii)-(vi);

"(B) the employer temporarily ceased operation, either partially or completely, at the individual's place of employment in response to a request from a public health authority with jurisdiction that the employer cease operations because of COVID-19, in response to an emergency order or directive issued by the Governor or the President related to COVID-19, or because the employer voluntarily ceased operations due to the actual exposure of workers at that place of employment to COVID-19;

"(C) the individual became unemployed as a direct result of a state of emergency declared by the Governor or the President in relation to COVID-19 or an order or directive issued by the Governor or President in relation to COVID-19, including through a change or reduction in the employer's operation at the individual's place of employment that was a direct result of such a state of emergency, order, or directive; or

"(D) the employer temporarily laid off the individual based on a recommendation or request by a medical professional or a public health authority with jurisdiction that the individual be isolated or quarantined as a result of COVID-19, regardless of whether the individual was diagnosed with COVID-19; and

"(2)(A) the employer rehired or offered to rehire the employee within a reasonable time, not to exceed 30 days after the reason for the individual's separation from employment set forth in subdivision (1) of this subsection (a) no longer exists; or

"(B) the employer demonstrates to the satisfaction of the Commissioner that it had good cause for failing to rehire or offer to rehire the employee within the time period set forth in subdivision (A) of this subdivision (a)(2).

"(b) On or before July 1, 2021, the Commissioner of Labor shall adopt procedures and an application form for employers to apply for relief from charges pursuant to subsection (a) of this section.

"(c) The Commissioner shall not be required to initiate rulemaking pursuant to 3 V.S.A. § 831(c) in relation to any procedures adopted under subsection (b) of this section.

"(d) On or before June 15, 2021, the Commissioner shall:

"(1) submit to the House Committee on Commerce and Economic Development and the Senate Committee on Economic Development, Housing and General Affairs a report summarizing the procedures and application form to be adopted pursuant to subsection (b) of this section; and

"(2) commence a public outreach campaign to notify employers, employees, and claimants of the requirements and procedures to obtain relief from charges under this section."

Cross References

Cross references. Contributions and reports upon sale of business, see § 1322(b) of this title.

ANNOTATIONS

Analysis

1. Chargeable employer.

A person eligible for unemployment compensation benefits who accepts unsuitable employment and voluntarily leaves such employment before the time period required to make his benefits chargeable to the second employer is entitled to benefits, and there is no waiver of benefits chargeable to the first employer. Wallace v. Department of Employment Security, 134 Vt. 513, 365 A.2d 517 (1976).

2. Transfer to successor.

Experience rating record of parent corporation could not be transferred under subsection (b) of this section to newly-created wholly-owned subsidiaries as each subsidiary was partial successor and there was not total or nearly total transfer of parent's business activities or assets. Sirloin Saloon of Shelburne, Rutland, & Manchester, Inc. v. Department of Employment & Training, 151 Vt. 123, 558 A.2d 226 (1989).

3. Review.

Doctrine of collateral estoppel barred employer from relitigating successor status determination regarding its purchase of another business, which resulted in increase in rate at which it was required to contribute to unemployment compensation fund, where administrative proceedings provided employer full and fair opportunity to raise arguments concerning determination, employer did in fact raise those arguments, which were considered and rejected by Employment Security Board on their merits, and employer failed to timely appeal board's decision rejecting its arguments. Sheehan v. Department of Employment & Training, 169 Vt. 304, 733 A.2d 88 (1999).

A successor business which does not appeal a successor status determination failing to apprise it of impact of such determination on its future unemployment compensation contribution rate does not waive its right to challenge that determination at a later time when extent of impact is specified. Sheehan v. Department of Employment & Training, 169 Vt. 304, 733 A.2d 88 (1999).

4. Part-time employment .

Where an employee works part time on an as-needed basis, the employer is entitled to the benefit of the provision that the experience-rating record of a base-period employer shall not be charged if an individual's employment with that employer has not been terminated or reduced in hours. In re Loyal Order of Moose, Inc. Lodge # 1090, 178 Vt. 510, 872 A.2d 345 (mem.) (March 15, 2005).

Cited. In re Hatch, 130 Vt. 248, 290 A.2d 180 (1972); Grenafege v. Department of Employment Security, 134 Vt. 288, 357 A.2d 118 (1976); Longe v. Department of Employment Security, 135 Vt. 460, 380 A.2d 76 (1977); Anthony Adams AIA Architect v. Department of Employment Security, 139 Vt. 413, 430 A.2d 446 (1981); Hunt v. Department of Employment Security, 142 Vt. 90, 453 A.2d 391 (1982); Trombley v. Department of Employment & Training, 146 Vt. 332, 503 A.2d 537 (1985); Habel v. Department of Employment & Training, 146 Vt. 566, 507 A.2d 973 (1986).

§ 1326. Rate based on benefit experience.

  1. The Commissioner shall for each rate year compute a benefit ratio for each employer who meets the requirements of section 1327 of this title.  For an employer whose record has been chargeable with benefits throughout the three consecutive calendar years immediately preceding the rate year for which the ratio is computed, the benefit ratio shall be the quotient obtained by dividing the total benefits charged to his or her record in such three years by the total of his or her taxable payrolls for the same three-year period; for an employer whose record has been chargeable with benefits for at least one but less than three consecutive calendar years immediately preceding the rate year for which the ratio is computed, the benefit ratio shall be the quotient obtained by dividing the total benefits charged to his or her record for such calendar year or years by the total of his or her taxable payrolls for the same period.  The contribution rate of each employer, not otherwise ineligible, who meets the requirements of section 1327 of this title, shall be determined under subsections (b) through (g) of this section.
  2. The Commissioner shall prepare a schedule on which he or she shall list all employers for whom a benefit ratio has been computed pursuant to this section, in the order of their benefit ratios, beginning with the lowest such ratio, and on which shall be shown with respect to each such employer:
    1. the amount of his or her benefit ratio;
    2. the amount of his or her annual taxable payroll; and
    3. a cumulative total consisting of the amount of his or her annual taxable payroll plus the amount of the annual taxable payrolls of all other employers preceding him or her on the list.
  3. The Commissioner shall segregate employers so listed into classes in accordance with the cumulative payrolls.  The classes shall be determined by the cumulative payroll percentage limits set forth in column B of the table below. Each such class shall be identified by the rate class number in column A that is opposite the figures in column B that represents the percentage limits of each class.  In the event an employer's taxable payroll falls in more than one rate class, he or she shall be assigned to the lower numbered rate class except that no employer shall be assigned to a higher rate class than is assigned any other employer with the same benefit ratio.
  4. The Commissioner shall compute a current fund ratio, and a highest benefit cost rate, as follows:
    1. The current fund ratio shall be determined by dividing the available balance of the Unemployment Compensation Fund on December 31 of the preceding calendar year by the total wages paid for employment during that calendar year as reported by employers by the following March 31.
      1. The highest benefit cost rate shall be determined by dividing the highest amount of benefit payments made during a consecutive 12-month period that ended within the 10-year period ending on the preceding December 31, by the total wages paid during the four calendar quarter periods that ended within that 12-month period. (2) (A) The highest benefit cost rate shall be determined by dividing the highest amount of benefit payments made during a consecutive 12-month period that ended within the 10-year period ending on the preceding December 31, by the total wages paid during the four calendar quarter periods that ended within that 12-month period.
      2. Notwithstanding any provision of subdivision (A) of this subdivision (d)(2) to the contrary, when computing the tax rate schedule to become effective on July 1, 2021 and on each subsequent July 1, the Commissioner shall calculate the highest benefit cost rate without consideration of benefit payments made in calendar year 2020.
  5. The rate schedule shall be determined by dividing the current fund ratio by the highest benefit cost rate.  The applicable rate schedule shall be that schedule below the resultant quotient that appears in column C of the following table:
  6. The contribution rate to become effective July 1, 1977 and thereafter on July 1 of each year shall be the rate determined for that class into which the given employer is placed by application of this section.
  7. If, subsequent to the assignment of rates of contribution for any rate year, the benefit ratio of any employer is recomputed and changed, such employer shall be placed in that position on the list that he or she would have occupied had his or her corrected benefit ratio been shown on the list, but such altered position on the list shall not affect the position of any other employer.
  8. In the determination of a rate schedule, only the wages paid by employers liable for payment of contributions into the fund and benefit payments not reimbursable by employers liable for payments in lieu of contributions shall be considered in the computation of a current fund ratio and highest benefit cost rate.

    Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 65 , eff. Jan. 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1963, No. 106 , § 2; 1965, No. 77 , § 1; 1967, No. 159 , § 1; 1969, No. 161 (Adj. Sess.); 1973, No. 31 , § 1, eff. March 27, 1973; 1977, No. 64 , § 14, eff. Jan. 1, 1977; 1983, No. 124 (Adj. Sess.), § 2; 2021, No. 51 , § 9a, eff. June 1, 2021.

  1. B.                          C.                             IF THE RESULTING QUOTIENT IS:   Rate     % of Taxable   2.50    2.00   1.50    1.00  Class       Payrolls      and     to     to      to    under                           over    2.49   1.99    1.49    1.00            From   To       I.      II.   III.     IV.     V.   0      00.00    00.00   0.4%    0.6%    0.8%    1.1%   1.3%   1      00.01    05.00    0.5     0.7     0.9     1.2    1.5   2      05.01    10.00    0.6     0.8     1.1     1.4    1.8   3      10.01    15.00    0.7     1.0     1.4     1.7    2.1   4      15.01    20.00    0.8     1.2     1.7     2.0    2.4   5      20.01    25.00    0.9     1.4     2.0     2.3    2.7   6      25.01    30.00    1.1     1.7     2.3     2.6    3.0   7      30.01    35.00    1.4     2.0     2.6     2.9    3.3   8      35.01    40.00    1.7     2.3     2.9     3.2    3.6   9      40.01    45.00    2.0     2.6     3.2     3.5    4.0  10      45.01    50.00    2.3     2.9     3.5     3.8    4.4  11      50.01    55.00    2.6     3.2     3.8     4.1    4.8  12      55.01    60.00    2.9     3.5     4.1     4.5    5.2  13      60.01    65.00    3.2     3.8     4.4     4.9    5.6  14      65.01    70.00    3.5     4.1     4.7     5.3    6.0  15      70.01    75.00    3.8     4.4     5.0     5.7    6.4  16      75.01    80.00    4.1     4.7     5.3     6.1    6.8  17      80.01    85.00    4.4     5.0     5.6     6.5    7.2  18      85.01    90.00    4.7     5.3     5.9     6.9    7.6  19      90.01    95.00    5.0     5.6     6.2     7.3    8.0  20      95.01   100.00    5.4     5.9     6.5     7.7    8.4

History

Source. 1955, No. 59 , § 2. 1949, No. 125 , § 2. V.S. 1947, § 5368. 1943, No. 123 , § 5. 1941, No. 155 , § 2. 1939, No. 179 , § 5. 1936, No. 1 (Sp. Sess.), § 7(c).

Amendments--2021. Subdiv. (d)(1): Substituted "that" for "the said" preceding the second instance of "calendar year".

Subdiv. (d)(2): Amended generally.

Amendments--1983 (Adj. Sess.). Subsec. (e): Amended generally.

Amendments--1977. Section amended generally.

Amendments--1973. Subdiv. (B): Amended generally.

Subdiv. (C): Substituted "July 1, 1974" for "July 1, 1970" following "effective" and deleted "class" preceding "rate determined".

Subdiv. (E): Added.

Amendments--1969 (Adj. Sess.). Subdiv. (B): Amended generally.

Amendments--1967. Subdiv. (B): Amended generally.

Amendments--1965. Subdiv. (B): Added the third sentence.

Amendments--1963. Section amended generally.

Amendments--1961. Introductory paragraph: Act No. 65 inserted "taxable" preceding "payrolls for the same period" at the end of the second sentence.

Act No. 210 substituted "Commissioner" for "board" preceding "shall" in the first sentence.

Subdiv. (8): Amended generally by Act No. 65.

Act No. 210 substituted "Commissioner" for "board" preceding "by January 31" in the first sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "shall" in the first sentence of the introductory paragraph and preceding "by January 31" in the first sentence of subdiv. (8).

Applicability of enactment - 1969 (Adj. Sess.). 1969, No. 161 (Adj. Sess.), § 2, provided: "This act [which amended this section] shall take effect from passage [Feb. 3, 1970], but shall be operative in the determination of rates of contribution to become effective July 1, 1970".

- 1967. 1967, No. 159 , § 2, provided: "This act [ 1967, No. 159 ] shall take effect from its passage [April 15, 1967], but shall be operative in the determination of rates of contribution to become effective July 1, 1967 and thereafter".

- 1965. 1965, No. 77 , § 2, provided: "Sec. 2. Notwithstanding the provisions of section 1 [which amended this section], the applicable rate schedule in force from July 1, 1965 to December 31, 1965 shall be rate schedule 5. Rate schedule 6 shall be in force from January 1, 1966 through June 30, 1966 with the provisions of this section to determine the applicable rate schedule on July 1, 1966 and thenceforth".

ANNOTATIONS

Cited. Vermont Institute of Community Involvement, Inc. v. Department of Employment Security, 140 Vt. 94, 436 A.2d 765 (1981); Sirloin Saloon of Shelburne, Rutland, & Manchester, Inc. v. Department of Employment & Training, 151 Vt. 123, 558 A.2d 226 (1989).

§ 1327. Rate, reduction, conditions.

No employer's contribution rate shall be reduced from five and four-tenths percent for any rate year, except as provided in section 1324 of this title, unless and until his or her experience-rating record has been chargeable with benefits throughout the three consecutive calendar years immediately preceding the rate year with respect to which said rate shall be reduced and contributions were payable by him or her with respect to such three calendar years; provided that an employer who has not been subject to the law for a period of time sufficient to meet this requirement may qualify for a reduced rate if his or her record has been chargeable with benefits throughout a lesser number of consecutive calendar years but in no event less than one calendar year immediately preceding the rate year with respect to which said rate shall be reduced and contributions were payable by him or her with respect to such period.

Amended 1963, No. 106 , § 3; 1971, No. 77 , § 5, eff. Dec. 31, 1971; 1983, No. 124 (Adj. Sess.), § 3.

History

Source. 1955, No. 59 , § 3. 1949, No. 128 . V.S. 1947, § 5369. 1947, No. 202 , § 10,311. 1943, No. 123 , § 5. 1941, No. 155 , § 2. 1939, No. 179 , § 5. 1936, No. 1 (Sp. Sess.), § 7(c).

Amendments--1983 (Adj. Sess.). Substituted "five and four-tenths" for "two and seven-tenths" preceding "percent".

Amendments--1971. Inserted "except as provided in section 1324 of this title" preceding "unless and until" and made minor stylistic change.

Amendments--1963. Inserted "rate" following "per cent for any" and "calendar" following "less than one", substituted "rate" for "calendar" following "immediately preceding the" in two places and deleted "for the calendar year of 1955 and each calendar year thereafter" following "provided that".

§ 1328. Filing employer quarterly tax contribution reports; failure.

The Commissioner shall impose a penalty of $100.00 for each failure by an employer to file any contribution report required under section 1322 of this title on or before the date on which the report is due, which shall be collected in the manner provided for the collection of contributions in section 1329 of this title and shall be paid into the Contingent Fund provided in section 1365 of this title. If the employer demonstrates that its failure was due to a reasonable cause, the Commissioner may waive or reduce the penalty.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1963, No. 106 , § 5; 1967, No. 178 ; 1985, No. 50 , § 9; 1989, No. 132 (Adj. Sess.), § 5; 2009, No. 142 (Adj. Sess.), § 10.

History

Source. 1953, No. 64 . 1949, No. 125 , § 4.

Amendments--2009 (Adj. Sess.) Inserted "employer quarterly tax contribution reports" in the section catchline, substituted "$100.00" for "$35.00" in the first sentence, and inserted "or reduce" following "waive" in the second sentence.

Amendments--1989 (Adj. Sess.). Section amended generally.

Amendments--1985. Inserted "contribution" following "file any" in the first sentence.

Amendments--1967. Section amended generally.

Amendments--1963. Section amended generally.

Amendments--1961. Substituted "Commissioner" for "board" preceding "in writing" and "upon consideration" in the first sentence and preceding "may" in the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

§ 1329. Collection of unpaid contributions; suit.

    1. If any employer fails to make, when due, any contributions or payments required of him or her under this chapter, the obligation shall carry interest at the rate of: (a) (1)  If any employer fails to make, when due, any contributions or payments required of him or her under this chapter, the obligation shall carry interest at the rate of:
      1. one percent per month from due date if the due date is prior to July 31, 1983;
      2. two and one-half percent per month from due date if the due date is subsequent to July 31, 1983 and on or prior to July 31, 1987;
      3. one and one-half percent per month from due date if the due date is subsequent to July 31, 1987.
    2. It shall be the duty of the Commissioner to collect the overdue obligations and interest. Interest so collected shall be paid into the Contingent Fund provided in section 1365 of this title. Provided, that if an employer has paid such contributions or payments timely to another state through error, the Commissioner may waive such interest. Provided further, that the Commissioner may waive all or a portion of such interest in any case in which, in the Commissioner's determination, the untimeliness of the payment was not caused by fault, neglect, or bad faith on the part of the employer.
  1. In addition to other remedies and proceedings authorized by this chapter, a civil action in the name of the Commissioner may be maintained and the remedies available in such action, including attachment and trustee process, shall be available to the Commissioner for the collection of contributions, interest, and penalties under this chapter.
  2. An employer failing, for any two calendar quarters during the preceding 20 calendar quarters, to make return or to pay contributions required under this chapter, and who has not ceased to be an employer as provided in section 1323 of this title, may be required by the Commissioner to furnish a good and sufficient bond conditioned upon the payment of such delinquent contributions, together with interest and penalty from the due date thereof, and containing such terms as may be determined by the Commissioner.  An employer who fails to furnish such bond when required by the Commissioner may be enjoined from employing individuals in employment, as defined by this chapter, upon complaint of the Commissioner in the Superior Court of any county in which the employer is doing business, until the contributions due, together with interest and penalty, are paid to the Commissioner.
  3. In the event of an employer's dissolution, adjudicated insolvency, adjudicated bankruptcy, receivership, assignment for benefit of creditors, judicially confirmed extension proposals or composition, claims or contributions due under this chapter and for interest thereon then or thereafter due under this chapter shall be a lien upon such employer's assets and shall have priority over all other claims except expenses of administration, taxes, wage claims, and prior liens valid under the laws of this State.
  4. No action shall be commenced for the collection of contributions, interest and penalties under this chapter more than three years after the date on which the contributions became due and payable, unless prior to the expiration of the three-year period:
    1. an assessment proceeding has been instituted under the provisions of section 1330 of this title;
    2. a civil action has been instituted under subsection (b) of this section; or
    3. a lien has been created under section 1336 of this title.
  5. The provisions of subsection (e) of this section shall not apply where an employer by willful failure or refusal to file a report with the Commissioner or to include in any report all wages that he has paid, or otherwise has attempted to avoid or reduce liability for the payment of contributions.

    Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1965, No. 27 , eff. April 14, 1965; 1967, No. 61 ; 1969, No. 41 ; 1983, No. 16 , § 6; 1985, No. 121 (Adj. Sess.), § 1, eff. April 16, 1986; 1987, No. 100 , § 2; 2017, No. 74 , § 50.

History

Source. 1951, No. 114 , § 1. V.S. 1947, § 5370. 1947, No. 199 , § 4. 1941, No. 157 , § 1. 1937, No. 171 , § 9. 1936, No. 1 (Sp. Sess.), § 13.

Revision note. Reference to "chancery court" in the second sentence of subsec. (c) changed to "superior court" pursuant to 1971, No. 185 (Adj. Sess.), § 236(d) and 1973, No. 193 (Adj. Sess.), § 3. See notes set out under §§ 71 and 219 of Title 4.

Second sentence of subsec. (e) was designated as subsec. (f).

Amendments--2017. Added the subdiv. designations for (a)(1) and (a)(2); and redesignated former subdivs. (a)(1)-(a)(3) as present subdivs. (a)(1)(A)-(a)(1)(C), respectively.

Amendments--1987. Subdiv. (a)(1): Deleted "or" following "1983).

Subdiv. (a)(2): Added "and on or prior to July 31, 1987" following "1983".

Subdiv. (a)(3): Added.

Amendments--1985 (Adj. Sess.). Subsec. (a): Added the fourth sentence at the end of the second paragraph.

Amendments--1983. Subsec. (a): Amended generally.

Subsec. (c): In the first sentence, inserted "any" preceding "two", deleted "successive" thereafter, inserted "during the preceding 20 calendar quarters" preceding "to make return" and made minor change in punctuation.

Amendments--1969. Subsec. (a): Amended generally.

Subsec. (e): Added.

Amendments--1967. Subsec. (a): Substituted "one percent" for "one-half of one percent" in the first sentence, deleted the former second sentence and deleted "or penalties" following "interest" in the present second sentence.

Amendments--1965. Designated first, second and third sentences of existing provisions as subsec. (a), added subsecs. (b) and (c), and designated fourth sentence of existing provisions as subsec. (d).

Amendments--1961. Substituted "Commissioner" for "board" throughout the section.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

ANNOTATIONS

Cited. In re Smith, Bell & Hauck Real Estate, Inc., 132 Vt. 295, 318 A.2d 183 (1974); Vermont Institute of Community Involvement, Inc. v. Department of Employment Security, 140 Vt. 94, 436 A.2d 765 (1981).

§ 1330. Assessment provided.

When any employer fails to pay any contributions or payments required under this chapter the Commissioner shall make an assessment of contributions against such employer together with interest and penalty thereon. After making the assessment, due notice shall be given thereof, by ordinary or certified mail, to the employer and the assessment shall be final unless the employer petitions for a hearing on such assessment within the time hereinafter specified.

Amended 1961, No. 210 , § 7, eff. July 11, 1961; 1989, No. 8 , § 1; 1989, No. 8 , § 1; 1991, No. 82 , § 2.

History

Source. 1951, No. 114 , § 2.

Amendments--1991. Inserted "ordinary or" preceding "certified" in the second sentence.

Amendments--1989. Deleted "of him" following "required" in the first sentence and deleted "within five days" preceding "after making" and "registered or" preceding "certified" and made a minor change in punctuation in the second sentence.

Amendments--1961. Substituted "Commissioner" for "unemployment compensation division" preceding "shall make" in the first sentence and rewrote the second sentence.

ANNOTATIONS

Cited. Vermont Institute of Community Involvement, Inc. v. Department of Employment Security, 140 Vt. 94, 436 A.2d 765 (1981); Times-Argus Association, Inc. v. Department of Employment & Training, 146 Vt. 320, 503 A.2d 129 (1985).

§ 1331. Notice; hearing.

Any employer against whom an assessment is made may, within 30 days after date thereof, file with the Commissioner a petition for a hearing before a referee appointed for such purpose, which petition shall set forth specifically and in detail the grounds upon which it is claimed the assessment is erroneous. Hearing or hearings on the assessment shall be held by the referee at such times and places as may be provided by rules and regulations of the Board and due notice of the time and place of such hearing or hearings shall be given by ordinary or certified mail to the petitioner. After hearing as above provided, the petitioner shall be promptly notified by ordinary or certified mail of the findings of fact, conclusions, and decision of the referee. The decision of the referee shall be final unless the employer or Commissioner makes application for review thereof by the Board within 30 days after date thereof or unless the Board, on its own motion within said period, initiates a review thereof.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 8, eff. July 11, 1961; 1989, No. 8 , § 2; 1991, No. 82 , § 3.

History

Source. 1955, No. 47 , § 1. 1951, No. 114 , § 3.

Amendments--1991. Inserted "ordinary or" preceding "certified" in the second and third sentences.

Amendments--1989. Substituted "30" for "fifteen" preceding "days after" and "date" for "notice" thereafter in the first sentence, deleted "registered or" preceding "certified" in the second and third sentences, substituted "30" for "fifteen" preceding "days after" and "date" for "notice" thereafter in the fourth sentence and made other minor changes in punctuation.

Amendments--1961. Section amended generally.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

Cross References

Cross references. Form and service of notices, see § 1357 of this title.

ANNOTATIONS

Cited. In re Cadieux, 129 Vt. 624, 285 A.2d 738 (1971); In re Smith, Bell & Hauck Real Estate, Inc., 132 Vt. 295, 318 A.2d 183 (1974); Headley v. Department of Employment Security, 139 Vt. 246, 427 A.2d 805 (1981); Times-Argus Association, Inc. v. Department of Employment & Training, 146 Vt. 320, 503 A.2d 129 (1985).

§ 1332. Review by board; Supreme Court appeal.

The Board, upon an application filed or on its own motion, within the time specified, shall, on notice to interested parties, review the decision of the referee. Before rendering its decision, the Board may order the taking of additional evidence by the referee or, in its discretion, the Board may hear additional evidence to be made a part of the record in the case. Upon the basis of evidence previously submitted in the case and such additional evidence as the Board may take or direct to be taken, the Board may affirm, modify, or reverse the findings and conclusions of the referee and shall render its decision thereon. The parties shall be promptly notified by ordinary or certified mail of the findings of fact, conclusions, and decision of the Board. The decision of the Board shall be final unless an appeal is taken therefrom to the Supreme Court.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 9, eff. July 11, 1961; 1971, No. 185 (Adj. Sess.), § 195, eff. March 29, 1972; 1989, No. 8 , § 3; 1991, No. 82 , § 4.

History

Source. 1955, No. 47 , § 2. 1951, No. 114 , § 4.

Amendments--1991. Made minor changes in punctuation in the second sentence, rewrote the fourth sentence, and inserted "of the board" following "decision" in the fifth sentence.

Amendments--1989. Deleted "registered or" preceding "certified" in the fourth sentence.

Amendments--1971. Added "Supreme Court appeal" at the end of the catchline, substituted "to the supreme court" for "under 12 V.S.A. section 2382" following "therefrom" at the end of the section and made other minor stylistic changes.

Amendments--1961. Section amended generally.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

Cross References

Cross references. Form and service of notices, see § 1357 of this title.

ANNOTATIONS

1. Basis for decision by board.

The employment security board has the option at all times of deciding a matter on the record of the evidence heard by the referee, or of supplementing that record by hearing further evidence of its own. Davis v. Department of Employment Security, 140 Vt. 269, 438 A.2d 375 (1981).

Cited. In re Moore, 128 Vt. 581, 269 A.2d 853 (1970); In re Cadieux, 129 Vt. 624, 285 A.2d 738 (1971); In re Smith, Bell & Hauck Real Estate, Inc., 132 Vt. 295, 318 A.2d 183 (1974); Pfenning v. Department of Employment & Training, 147 Vt. 533, 522 A.2d 743 (1986).

§ 1333. Repealed. 1961, No. 210, § 17, eff. July 11, 1961.

History

Former § 1333. Former § 1333, relating to appeals to county courts and rules of procedure, was derived from 1951, No. 114 , § 5.

§ 1334. Judgment; exception.

  1. Any liability for contributions, payments, penalties, interest, and costs imposed under this chapter becomes, from the time the liability is due and payable, a debt of the liable employer or employing unit to the State for the benefit of the Unemployment Compensation Fund and the Contingent Fund to be recovered in a civil action.
  2. The Commissioner may file in the Superior Court for the county wherein the employer resides, or the Washington Superior Court if the employer is a nonresident, a certified copy of an assessment for contributions from which an appeal has not been taken within the time allowed therefor, whereupon such court after due notice to all parties interested, shall summarily render a final judgment in accordance therewith.  Such judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same, as though such judgment had been rendered in an action duly heard and determined by such court, provided, however, there shall not be an appeal therefrom except on matters of law heard and determined in such court.
  3. When an assessment has been made under section 1330 of this title from which a timely appeal has not been taken or when any appeal taken has been finally determined under sections 1331 and 1332 of this title, the Commissioner may, as an additional or alternate remedy to other remedies and proceedings authorized by this chapter, issue a warrant directed to the sheriff of any county of this State.  The warrant shall command the sheriff to levy upon and sell the real and personal property of any person liable for unpaid contributions, payments, interest, penalties, and costs due under this chapter, for payment of the amount due and the cost of executing the warrant, and to return the warrant to the Commissioner and to pay him or her the money collected by virtue of the warrant within 60 days after receipt of the warrant.  The sheriff shall within five days after receipt of the warrant file with the county clerk a copy of the warrant, and the clerk shall then enter in the judgment docket the name of the person liable, the amount of the contributions, payments, interest, penalties, and costs for which the warrant is issued and the date when the copy is filed.  The levy and sale shall be effected in the manner prescribed for levy of execution. If a warrant is returned not fully satisfied, the Commissioner may from time to time issue new warrants for the balance due in accordance with the procedure described hereinabove.

    Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1977, No. 64 , § 15.

History

Source. 1951, No. 114 , § 6.

Amendments--1977. Designated existing provisions of section as subsec. (b) and added subsecs. (a) and (c).

Amendments--1973 (Adj. Sess.). Substituted "Superior" for "county" following "file in the" and following "Washington" in the first sentence.

Amendments--1961. Substituted "Commissioner" for "board" preceding "may file" in the first sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "may file" in the first sentence.

Cross References

Cross references. Levy of execution, see 12 V.S.A. § 2681 et seq.

§ 1335. Repealed. 1961, No. 210, § 17, eff. July 11, 1961.

History

Former § 1335. Former § 1335, relating to taking cause from county court to Supreme Court on exceptions, was derived from 1951, No. 114 , § 7.

§ 1336. Lien, fee, foreclosure.

  1. All contributions, interest, penalties, and costs thereon due and payable by an employer under the provisions of this chapter shall be a lien upon the real estate of such employer from the date a lien for such contributions, interest, penalties, and costs is entered in the land records of the town in which is located real estate of the employer.  A lien for such contributions, penalties, interest, and costs shall be created upon the personal property or franchises of the employer if such lien is recorded in the town clerk's office of the town in which the employer resides; and, if the employer is a corporation or a co-partnership, then such lien on the franchises or personal property of such employer shall be recorded in the town clerk's office in the town in which such employer has its principal place of business in the State.  Liens created under this section shall show name of employer, amount of contributions, and other indebtedness due to the Commissioner of Labor. A lien created under this section shall be a lien prior to all other liens except liens created for taxes due the State of Vermont, the federal government, or town or municipality in this State and wage claims.  Such lien shall not be a prior lien to liens on record prior to the recording of the lien provided for herein.
  2. There shall be paid to the town clerk by the Commissioner for recording each such lien, and the discharge of a recorded lien, the fees prescribed in 32 V.S.A. § 1671 . The fees shall be added to the amount due from the employer under the lien.
  3. An employer upon whose property a lien is created as provided herein shall be given due notice thereof by ordinary or certified mail within five days after the creation of such lien.
  4. When the contributions, interest, penalties, and costs, secured by a lien in accordance with this section, remains unpaid for 90 days after the creation of such lien, such lien on personal property may be foreclosed in the same manner as provided by law for the foreclosure of mortgages on personal property; and such a lien on real property may be foreclosed in the same manner as provided by law for the foreclosure of mortgages on real property. The foregoing remedy shall be in addition, or as an alternative, to the remedy provided by section 1329 of this title, for the collection of unpaid contributions.
  5. In the event the employer files a written protest to the creation of the lien within 30 days after date thereof, assessment proceedings as provided in sections 1329-1334 of this title shall be had.
  6. If final judgment is in favor of the employer the property of the employer shall be discharged from the lien. If final judgment is against the employer, the property under the lien shall be held to respond to the judgment rendered and may be taken in execution thereon unless the employer otherwise satisfies the execution and charges.
  7. The Commissioner shall issue and record a certificate of release of the lien if:
    1. The Commissioner finds that the liability for contributions due, together with interest, penalty, and costs, has been satisfied or has become unenforceable.
    2. There is furnished to the Commissioner a bond with surety approved by the Commissioner in a penal sum sufficient to equal the amount of contributions due, together with interest, penalty, and costs, said bond to be conditioned upon the payment of any judgment rendered in proceedings regularly instituted by the Commissioner to enforce collection thereof.
    3. The Commissioner determines at any time that the interest of the State of Vermont in the property has no value.

      Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1963, No. 58 ; 1969, No. 40 , § 1, eff. April 4, 1969; 1981, No. 66 , § 5(b), eff. May 1, 1981; 1989, No. 8 , §§ 4, 5; 1991, No. 82 , § 5; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Source. 1955, No. 51 . V.S. 1947, § 5371. 1947, No. 199 , § 6. 1941, No. 157 , § 1. 1937, No. 171 , § 9. 1936, No. 1 (Sp. Sess.), § 13.

Revision note. In subsec. (e), substituted "sections 1329-1334 of this title" for "sections 1329-1335 of this title" to conform reference to present provisions relating to assessment proceedings.

Amendments--2005 (Adj. Sess.) Subsec. (a): Substituted "Commissioner of Labor" for "commissioner of employment and training".

Amendments--1991. Subsec. (c): Inserted "ordinary or" preceding "certified".

Amendments--1989. Subsec. (c): Substituted "certified" for "registered" preceding "mail".

Subsec. (e): Substituted "30" for "fifteen" preceding "days after" and "date" for "receipt of notice" thereafter.

Amendments--1981. Subsec. (a): Substituted "and training" for "security" following "employment" at the end of the third sentence.

Amendments--1969. Subsec. (b): Substituted "and the discharge of a recorded lien, the fees prescribed in section 1671 of Title 32" for "a fee of fifty cents" following "lien" at the end of the first sentence, "the fees" for "such fee" preceding "shall" at the beginning of the second sentence and "the" for "such" preceding "lien" at the end of that sentence.

Amendments--1963. Subsec. (g): Added.

Amendments--1961. Subsec. (a): Substituted "commissioner of employment security" for "employment security board" following "due to the" at the end of the third sentence.

Subsec. (b): Substituted "commissioner" for "board" preceding "for recording" in the first sentence.

Amendments--1959 (Adj. Sess.). Subsec. (a): Substituted "employment security board" for "unemployment compensation commission" following "due to the" at the end of the third sentence.

Subsec. (b): Substituted "board" for "commission" preceding "for recording" in the first sentence.

Cross References

Cross references. Foreclosure of mortgages, see V.R.C.P. 80.1.

§ 1337. Adjustments and refunds.

If not later than three years after the date on which any contributions or interest thereon became due, an employer who has paid such contributions or interest thereon shall make application for an adjustment thereof in connection with subsequent contribution payments, or for a refund thereof because such adjustment cannot be made, and the Commissioner shall determine that such payments or any portion thereof were erroneously collected, the Commissioner shall allow such employer to make an adjustment thereof, without interest, in connection with subsequent payments by him or her, or if such adjustment cannot be made, shall refund said amount without interest from the fund. For like cause and within the same period, adjustment or refund may be so made on the Commissioner's own initiative.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1997, No. 101 (Adj. Sess.), § 3.

History

Source. V.S. 1947, § 5372. 1947, No. 202 , § 10,313. 1937, No. 171 , § 10. 1936, No. 1 (Sp. Sess.), § 14.

Amendments--1997 (Adj. Sess.). In the first sentence substituted "three years" for "two years" near the beginning and added "or her" after "payments by him" near the end.

Amendments--1961. Substituted "commissioner" for "board" throughout the section.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

§ 1337a. Administrative determination; hearing on.

  1. Any employing unit aggrieved by an administrative determination affecting its rate of contributions, its rights to adjustment or refund on contributions paid, its coverage as an employer, or its termination of coverage may, within 30 days after date thereof, file with the Commissioner a petition for a hearing thereon, which petition shall set forth specifically and in detail the grounds upon which it is claimed the administrative determination is erroneous. Hearing or hearings on such petition shall be held by a referee appointed for such purpose, at such times and places as may be provided by rules of the Board, and due notice of the time and place of such hearing or hearings shall be given by ordinary or certified mail to the petitioner.
  2. After hearing as provided in subsection (a) of this section, the petitioner shall be promptly notified by ordinary or certified mail of the findings of fact, conclusions, and decision of the referee. The decision of the referee shall be final unless the employing unit or Commissioner makes application for review thereof by the Board within 30 days after date thereof or unless the Board, on its own motion within said period, initiates a review thereof.

    Added 1961, No. 210 , § 10, eff. July 11, 1961; amended 1965, No. 76 , § 1, eff. May 26, 1965; 1989, No. 8 , § 6; 1991, No. 82 , § 6.

History

2016. In subsec. (b), in the first sentence, substituted "in subsection (a) of this section" for "above" preceding "provided".

Revision note - Undesignated paragraphs were designated as subsecs. (a) and (b) to conform section to V.S.A. style.

Amendments--1991. Inserted "ordinary or" preceding "certified" in the second sentence of subsec. (a) and in the first sentence of subsec. (b).

Amendments--1989. Subsec. (a): Substituted "its" for "the" following "affecting", "30" for "fifteen" preceding "days after" and "date" for "notice" thereafter in the first sentence, and deleted "registered or" preceding "certified" and made other minor changes in punctuation in the second sentence.

Subsec. (b): Deleted "registered or" preceding "certified" and substituted "decision" for "decisions" following "conclusions and" in the first sentence, deleted "within fifteen days after notice thereof" preceding "makes application for review", inserted "thereof" thereafter, and substituted "within 30 days after date thereof" for "as provided in section 1332 of this title" preceding "or unless the board" in the second sentence, and made other minor changes in punctuation.

Amendments--1965. Substituted "coverage" for "covering" following "paid, its", inserted "or" preceding "its termination" and deleted "or its classification as a seasonal employer" preceding "may, within fifteen" in the first sentence.

Cross References

Cross references. Form and service of notices, see § 1357 of this title.

ANNOTATIONS

1. Standing .

To have standing under subsection (a) of this section, a party must show an "invasion of a legally protected interest." Corcoran v. Department of Employment and Training, 178 Vt. 579, 878 A.2d 1069 (mem.) (May 12, 2005).

Town clerk who submitted a status report to the Department of Employment and Training (DET) in order to register as an employer liable to the unemployment insurance fund for coverage for his lone employee lacked standing to appeal the nonliable decision of DET because he did not suffer an invasion of any legally protected interest. Corcoran v. Department of Employment and Training, 178 Vt. 579, 878 A.2d 1069 (mem.) (May 12, 2005).

Cited. Fair Haven Animal Hospital v. Department of Employment & Training, 150 Vt. 650, 552 A.2d 407 (mem.) (1988).

§ 1338. Weekly benefits.

  1. Each eligible individual who is totally unemployed in any week shall be paid with respect to such a week a weekly benefit amount determined as provided in this section.
  2. , (c)  [Repealed.]

    (d) (1) To qualify for benefits an individual must:

    1. An individual filing a new claim for unemployment compensation shall, at the time of filing of such claim, be advised that:
      1. unemployment compensation is subject to federal and State income tax;
      2. requirements exist pertaining to estimated tax payments;
      3. the individual may elect to have federal income tax deducted and withheld from the individual's payment of unemployment compensation in the amount specified in the federal Internal Revenue Code;
      4. the individual who elects to have federal income tax deducted and withheld shall have State income tax withheld at 24 percent of the federal rate; and
      5. the individual shall be permitted to change a previously elected withholding once during each benefit year.
    2. Amounts deducted and withheld from unemployment compensation shall remain in the Unemployment Trust Fund until transferred to the federal and State taxing authority as a payment of income tax.
    3. The Commissioner shall follow all procedures specified by the U.S. Department of Labor and the federal Internal Revenue Service pertaining to the deducting and withholding of income tax.
    4. Amounts shall be deducted and withheld under this section only after amounts are deducted and withheld for any overpayments of unemployment compensation, child support obligations, or other amounts required to be deducted and withheld under this chapter.

      Amended 1959, No. 51 , § 1; 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1963, No. 84 , § 3; 1969, No. 42 , § 2; 1971, No. 71 , § 1, eff. April 15, 1971; 1973, No. 231 (Adj. Sess.), §§ 2, 3; 1977, No. 64 , § 16; 1981, No. 194 (Adj. Sess.), § 2, eff. June 20, 1982; 1983, No. 16 , § 7, eff. May 1, 1983; 1985, No. 146 (Adj. Sess.), § 2; 1991, No. 183 (Adj. Sess.), § 4; 1993, No. 177 (Adj. Sess.), § 2; 1995, No. 85 (Adj. Sess.), § 1, eff. Jan. 1, 1997; 1997, No. 101 (Adj. Sess.), § 10; 2001, No. 143 (Adj. Sess.), § 65, eff. June 21, 2002; 2003, No. 70 (Adj. Sess.), § 64, eff. March 1, 2004; 2009, No. 2 (Sp. Sess.), § 2, eff. June 9, 2009; 2009, No. 124 (Adj. Sess.), § 3, eff. July 1, 2011; 2013, No. 173 (Adj. Sess.), § 3; 2021, No. 51 , § 10, eff. June 1, 2021; 2021, No. 51 , §§ 11, 12.

  1. have been paid in one quarter of his or her base period wages in employment with an employer or employers subject to this chapter that equal at least $1,000.00; and
  2. have been paid in his or her base period additional wages in employment with an employer or employers subject to this chapter that equal or exceed 40 percent of the total wages paid in the highest quarter of his or her base period; and
  3. have earned subsequent to the beginning of his or her most recent benefit year wages in employment with an employer or employers subject to this chapter that equal or exceed four times his or her weekly benefit amount as determined under subsection (e) of this section for that prior benefit year.

    (2) The base period wages shall not include any wages paid by an employing unit based on a separation for gross misconduct under subdivision 1344(a)(2)(B) of this title.

    (e) Subsection (e) effective until occurrence of contingency; see also contingent amendments by 2021, No. 51 , §§ 11 and 12 set out below. For benefit years beginning on January 3, 1988 and subsequent thereto, an individual's weekly benefit amount shall be determined by dividing the individual's two high quarter total subject wages required under subdivision (d)(1) of this section by 45, provided that the weekly benefit amount so determined shall not exceed the maximum weekly benefit amount computed as provided in this section.

    (e) (1) Contingent amendments to subsection (e) by 2021, No. 51 , § 11; see also subsection (e) effective until occurrence of contingency set out above and contingent amendment to subsection (e) by 2021, No. 51, § 12 set out below. An individual's weekly benefit amount shall be determined by dividing the individual's two high quarter total subject wages required under subdivision (d)(1) of this section by 45, provided that the weekly benefit amount so determined shall not exceed the maximum weekly benefit amount computed pursuant to subsection (f) of this section.

    (2) Notwithstanding the maximum weekly benefit amount computed pursuant to subsection (f) of this section, an individual shall receive a supplemental benefit of $25.00 per week in addition to the amount determined pursuant to subdivision (1) of this subsection.

    (e) Contingent amendment to subsection (e) by 2021, No. 51, § 12; see also subsection (e) effective until occurrence of contingencies and contingent amendment to subsection (e) by 2021, No. 51, § 11 set out above. An individual's weekly benefit amount shall be determined by dividing the individual's two high quarter total subject wages required under subdivision (d)(1) of this section by 45, provided that the weekly benefit amount so determined shall not exceed the maximum weekly benefit amount computed pursuant to subsection (f) of this section.

    (f) (1) The maximum weekly benefit amount shall be annually adjusted on the first day of the first calendar week in July to an amount equal to 57 percent of the State annual average weekly wage as determined by subsection (g) of this section.

    (2) Notwithstanding any provision of subdivision (1) of this subsection to the contrary:

    (A) The maximum weekly benefit amount shall not increase in any year that advances made to the State Unemployment Compensation Fund pursuant to Title XII of the Social Security Act, as amended, remain unpaid.

    (B) The maximum weekly benefit amount shall not decrease.

    (g) On or before the first day of June of each year, the total wages reported on contribution reports for the preceding calendar year shall be divided by the average monthly number of covered workers (determined by dividing the total covered employment reported on contribution reports pursuant to this chapter for the preceding year by 12). The State average annual wage thus obtained shall be divided by 52 and the State average weekly wage thus determined shall be rounded down to the nearest dollar.

    (h) Effective with the first calendar week of July, 1990, and with the first full calendar weeks of each July thereafter, the minimum quarterly wage requirement of subdivision (d)(1) of this section shall be adjusted by a percentage increase equal to the percentage increase, if any, in the State minimum wage effective during the prior calendar year. This adjusted minimum quarterly wage requirement shall be applicable to new claims for benefits with effective dates during or after the first full calendar week of July 1990, and the first full calendar weeks of each July thereafter.

    1. Income tax withholding.

History

Source. 1955, No. 20 , § 1. 1953, No. 146 , § 3. 1949, No. 129 , § 1. V.S. 1947, § 5373. 1945, No. 140 , § 1. 1943, No. 124 , § 4. 1941, No. 150 , § 1. 1936, No. 1 , § 3(b).

Reference in text. Title XII of the Social Security Act, referred to in subsec. (f), is codified as 42 U.S.C. § 1321 et seq.

Title XII of the Social Security Act, referred to in subsec. (f), is codified as 42 U.S.C. § 1321 et seq.

Revision note. Redesignated paragraphs (1)-(4) as subsecs. (a)-(d) to conform section to V.S.A. style.

Amendments--2021. Subsecs. (b), (c): Repealed by Act No. 51, § 11.

Subdiv. (d)(1): Act No. 51, § 11 deleted "For benefit years beginning on January 3, 1988 and subsequent thereto," at the beginning of the intro. para.

Subsec. (e): Act No. 51, § 11 designated the existing provisions as subdiv. (e)(1); in subdiv. (e)(1), deleted "For benefit years beginning on January 3, 1988 and subsequent thereto" from the beginning, and substituted "pursuant to subsection (f) of" for "as provided in"; and added subdiv. (e)(2).

Subsec. (e): Act No. 51, § 12 deleted the subdiv. (e)(1) designation and deleted former subdiv. (e)(2).

Subsec. (f): Amended generally by Act No. 51, § 10.

Amendments--2013 (Adj. Sess.). Subdiv. (d)(1)(A): Substituted "$1,000.00" for "$1000.00" following "equal at least".

Subdiv. (d)(2): Added.

Subsec. (e): Deleted the former second sentence.

Amendments--2009 (Adj. Sess.) Subsec. (e): Added the last sentence.

Subsec. (f): Amended generally.

Subdiv. (i)(1)(D): Substituted "at 24 percent of the federal rate" for "in accordance with the rates shown at section 5822 of Title 32".

Amendments--2009 (Sp. Sess). Subsec. (f): Deleted the maximum weekly benefit for the 12-month period of July 1, 2001 through June 30, 2002 of $312.00, and for the 12-month period of July 1, 2002 through June 30, 2003 of $351.00, and substituted a maximum weekly benefit of $425.00 for the 12-month period of July 1, 2009 through June 30, 2010.

Amendments--2003 (Adj. Sess.). Subdiv. (i)(1)(D): Substituted "in accordance with the rates shown at section 5822 of Title 32" for "at a rate equal to 25 percent of the federal rate".

Amendments--2001 (Adj. Sess.) Subsec. (f): Amended generally.

Amendments--1997 (Adj. Sess.). In subsec. (f), substituted the language beginning "$265.00 from July 1" for "$146.00 from July 1, 1983 through June 30, 1986" in the first sentence, and deleted "nor shall any adjustment be made unless the loss of federal tax credit assessed against employers for repayment of advances made prior to April 1, 1982 remain at six tenth of one percent or below" at the end of the second sentence.

Amendments--1995 (Adj. Sess.) Subsec. (i): Added.

Amendments--1993 (Adj. Sess.). Subdiv. (d)(1): Inserted "in one quarter of his or her base period" preceding "wages" and deleted "in a quarter of his or her base period" following "$1000.00".

Subdiv. (d)(2): Inserted "in employment" following "additional wages".

Subdiv. (d)(3): Deleted "wages" preceding "subsequent" and inserted "wages in employment with an employer or employers subject to this chapter" preceding "which equal".

Amendments--1991 (Adj. Sess.). Subsec. (g): Substituted "first day of June" for "fifteenth day of May" following "before the" in the first sentence.

Amendments--1985 (Adj. Sess.). Subsec. (b): Added "for benefit years beginning prior to January 3, 1988" preceding "to qualify".

Subsec. (c): Amended generally.

Subsec. (d): Amended generally.

Subsec. (e): Redesignated former subsec. (e) as subsec. (f) and added a new subsec. (e).

Subsec. (f): Redesignated former subsec. (e) as subsec. (f), substituted "(g)" for "(f)" following "determined by subsection" in that subsection and redesignated former subsec. (f) as subsec. (g).

Subsec. (g): Redesignated former subsec. (f) as subsec. (g).

Subsec. (h): Added.

Amendments--1983. Redesignated former subsec. (e) as subsec. (f), substituted "down to the nearest dollar" for "to the nearest cent" following "rounded" at the end of the second sentence and deleted the third sentence of that subsection and added a new subsec. (e).

Amendments--1981 (Adj. Sess.). Subsec. (b): Substituted "employment with an employer subject to this chapter" for "subject employment" following "per week in".

Subsec. (c): Added "for benefit years beginning prior to June 27, 1982" preceding "an individual's" at the beginning of the first sentence.

Subsec. (d): Redesignated former subsec. (d) as subsec. (e) and added a new subsec. (d).

Subsec. (e): Redesignated former subsec. (d) as subsec. (e).

Amendments--1977. Subsec. (b): Substituted "$35.00" for "$30.00" preceding "per week".

Subsec. (c): Inserted "earned in employment with an employer subject to this chapter" following "weekly wage" and "earned in that employment" following "his wages" in the first sentence.

Amendments--1973 (Adj. Sess.). Subsec. (d): Substituted "sixty percent" for "one half" preceding "of this amount" at the beginning of the third sentence and deleted "except as hereinafter provided" preceding "constitute" in that sentence.

Subsec. (e): Repealed.

Amendments--1971. Subsec. (c): Substituted "as provided in this section" for "in accordance with subdivision (4) below, nor less than $15.00" following "computed" at the end of the third sentence.

Subsec. (d): Substituted "May" for "April" preceding "of each year" in the first sentence, inserted "state" preceding "average annual" and "average weekly" and "shall be" preceding "rounded" in the second sentence and "except as hereinafter provided" preceding "constitute" in the third sentence and deleted "whose benefit year commences" preceding "on or after" in that sentence.

Subsec. (e): Added.

Amendments--1969. Subsec. (b): Substituted "$30.00" for "$20.00" preceding "per week".

Subsec. (c): Substituted "$15.00" for "$10.00" following "less than" at the end of the third sentence.

Amendments--1963. Section amended generally.

Amendments--1961. Substituted "commissioner" for "board" following "extended by the" in the third sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "extended by the" in the third sentence.

Amendments--1959. Section amended generally.

Applicability--1963 amendment. 1963, No. 84 , § 6, provided that the amendment to this section would apply to all benefit years beginning after July 1, 1963.

Maximum weekly unemployment benefit. 2009, No. 2 (Sp. Sess.), § 2a provides: "The maximum weekly benefit under 21 V.S.A. § 1338(f) shall be $425.00 until July 1, 2009."

Effective date of subdivision (i)(1)(D). 2009, No. 124 (Adj. Sess.), § 15(a), provides that subdivision (i)(1(D) of this code section shall take effect on passage [May 24, 2010], notwithstanding the fact that the amendments to subsections (e) and (f) are not effective until July 1, 2011.

Effective date of 2021 amendment. 2021, No. 51 , § 17(a)(3) provides: "Sec. 11 (supplemental weekly benefit) shall take effect 30 days after the termination date for Federal Pandemic Unemployment Compensation set forth in 15 U.S.C. § 9023(e)(2), as amended."

Effective date and applicability of 2021 amendment. 2021, No. 51 , § 17(a)(4) provides: "Sec. 12 (repeal of supplemental weekly benefit) shall take effect upon the payment of a cumulative total of $100,000,000.00 in supplemental benefits pursuant to 21 V.S.A. § 1338(e)(2) and shall apply prospectively to all benefit payments in the next week and each subsequent week."

Cross References

Cross references. Benefit eligibility conditions, see § 1343 of this title.

Benefits not subject to assignment or trustee process, see § 1367 of this title.

Child support intercept of benefits, see § 1367a of this title.

Maximum total amount of unemployment benefits payable during benefit year, see § 1340 of this title.

Waiver of right to benefits void, see § 1366 of this title.

Weekly benefit for partial unemployment, see § 1339 of this title.

ANNOTATIONS

1. Computation of weekly benefits.

Former employee who made a "valid claim" when he filed for unemployment compensation benefits continued to hold onto it, although temporary disqualification was then imposed, and upon his satisfaction of the temporary disqualification requirements he was eligible for benefits, such that the employer was automatically liable for reimbursement payments; the employer's obligation was governed by the law in force at the time of the initial claim. Windham County Sheriff's Dep't v. Dep't of Labor, 195 Vt. 1, 86 A.3d 410 (2013).

Inclusion of wages earned during the base period from employers not subject to this chapter, and from employment excluded from this chapter, was mandated in computing the weekly benefit amounts of a qualified claimant where subsection (c) of this section made no reference to subject employment. Grenafege v. Department of Employment Security, 134 Vt. 288, 357 A.2d 118 (1976).

Cited. In re Moore, 128 Vt. 581, 269 A.2d 853 (1970); Smith v. Department of Employment Security, 137 Vt. 383, 407 A.2d 158 (1979); City of Burlington v. Department of Employment & Training, 148 Vt. 151, 530 A.2d 573 (1987); Shufelt v. Department of Employment & Training, 148 Vt. 163, 531 A.2d 894 (1987); Skudlarek v. Department of Employment & Training, 160 Vt. 277, 627 A.2d 340 (1993); Longariello v. Windham Southwest Supervisory Union, 165 Vt. 573, 679 A.2d 337 (mem.) (1996).

§ 1338a. Disregarded earnings.

  1. An individual shall be deemed "partially unemployed" in any week of less than full-time work if the wages earned by the individual with respect to such week are less than the weekly benefit amount the individual would be entitled to receive if totally unemployed and eligible. As used in this section, "wages" in any one week includes only that amount of remuneration to the nearest dollar that is in excess of 50 percent of the individual's weekly wage.
  2. Notwithstanding subsection (a) of this section, an individual shall not be deemed to be "partially unemployed" if the individual performed less than full-time work only because there was a holiday in that week for which the individual was entitled to holiday pay.

    Added 1959, No. 64 , eff. March 31, 1959; amended 1967, No. 246 (Adj. Sess.), § 1, eff. Feb. 20, 1968; 1971, No. 70 , eff. April 15, 1971; 1979, No. 120 (Adj. Sess.). § 8, eff. April 14, 1980; 1991, No. 62 ; 2001, No. 56 , § 2; 2009, No. 124 (Adj. Sess.), § 4, eff. July 1, 2012; 2013, No. 173 (Adj. Sess.), § 8.

History

Revision note. In the second sentence, substituted "section" for "subsection" to correct an error in the reference.

Amendments--2013 (Adj. Sess.). Subsec. (a): Substituted "that is in excess of 50 percent" for "which is in excess of 30 percent" following "to the nearest dollar", and deleted ", or $40.00, whichever amount is greater" at the end.

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "wage" for "benefit" preceding "or $40.00" in the last sentence.

Amendments--2001. Designated existing provisions as subsec. (a), substituted "full-time" for "full time" in first sentence of that subsection and added subsec. (b).

Amendments--1991. Section amended generally.

Amendments--1979 (Adj. Sess.). Subsec. (a): Deleted "notwithstanding any other provision of this chapter" preceding "an individual" in the first sentence.

Amendments--1971. Section amended generally.

Amendments--1967 (Adj. Sess.). Undesignated paragraphs were designated as subsecs. (a)-(c) and "continued" substituted for "compensable" preceding "claim" in subsec. (c).

ANNOTATIONS

Cited. Grenafege v. Department of Employment Security, 134 Vt. 288, 357 A.2d 118 (1976); Littlefield v. Department of Employment & Training, 145 Vt. 247, 487 A.2d 507 (1984); Habel v. Department of Employment & Training, 146 Vt. 566, 507 A.2d 973 (1986).

§ 1339. Weekly benefit for partial unemployment.

Each eligible individual who is partially unemployed in any week shall be paid with respect to such week a partial benefit. Such partial benefit shall be an amount equal to the difference between his or her weekly benefit amount and his or her wages, as used in section 1338a of this title, for such week.

Amended 1981, No. 86 , § 11, eff. May 10, 1981.

History

Source. V.S. 1947, § 5374. 1943, No. 24 , § 5. 1941, No. 150 , § 2. 1939, No. 181 , § 8. 1937, No. 171 , § 3. 1936, No. 1 (Sp. Sess.), § 3(c).

Amendments--1981. Substituted "section 1338a" for "subdivision (9) of section 1301".

Cross References

Cross references. Benefit eligibility conditions, see § 1343 of this title.

Maximum total amount of benefits payable during benefit year, see § 1340 of this title.

ANNOTATIONS

Cited. Jenkins v. Department of Employment Security, 135 Vt. 210, 373 A.2d 533 (1977).

§ 1340. Computation of benefits.

  1. Except as provided in subchapter 2 of this chapter, the maximum total amount of benefits payable to any eligible individual during any benefit year shall not exceed the lesser of 26 times his or her weekly benefit amount or 46 percent of the total wages paid to the individual during his or her base period.
  2. An individual who is discharged by his or her last employing unit for misconduct connected with his or her work under subdivision 1344(a)(1)(A) of this title is limited to a maximum amount during the benefit year which is the lesser of the maximum amount determined under subsection (a) of this section or 23 times his or her weekly benefit amount, provided that the individual has not already received more than 23 weeks in his or her benefit year.

    Amended 1959, No. 51 , § 2; 1959, No. 107 , § 2, eff. April 10, 1959; 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1963, No. 84 , § 5; 1971, No. 1 , § 1, eff. Oct. 11, 1970; 2009, No. 156 (Adj. Sess.), § E.401.3, eff. June 3, 2010; 2009, No. 124 (Adj. Sess.), § 5, eff. July 1, 2011.

History

Source. 1955, No. 20 , § 2. 1949, No. 129 , § 2. V.S. 1947, § 5375. 1947, No. 202 , § 10,316. 1945, No. 140 , § 2. 1943, No. 124 , § 7. 1941, No. 151 , § 1. 1939, No. 181 , § 9. 1937, No. 171 , § 3. 1936, No. 1 (Sp. Sess.), § 3(e).

2003. Substituted "subchapter 2 of this chapter" for "subchapter 2 of this title" to conform reference to V.S.A. style.

Amendments--2009 (Adj. Sess.) Designated the existing provisions of the section as subsec. (a), and in that subsection, inserted "the lesser of" preceding "26 times" and added "or 46 percent of the total wages paid to the individual during his or her base period", and added subsec. (b).

Substituted "duration" for "computation" in the section heading, and "subchapters 2 and 4" for "subchapter 2".

Amendments--1971. Section amended generally.

Amendments--1963. Deleted the former first and second sentences.

Amendments--1961. Substituted "commissioner" for "board" preceding "shall maintain" in the first sentence and preceding "shall credit" in the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "shall maintain" in the first sentence and preceding "shall credit" in the second sentence.

Amendments--1959. Act No. 51 substituted "twenty-six times the maximum weekly benefit amount as provided in section 1338 of this title" for "$ 728.00" preceding "whichever" in the second sentence.

Act No. 107 inserted "(a)" preceding "twenty-six times his weekly benefit amount" in the third sentence, added "or, (b) in the event of high level unemployment, thirty-nine times his weekly benefit amount" thereafter and added the fourth and fifth sentences.

Applicability--1963 amendment. 1963, No. 84 , § 6, provided that the provisions of that act shall apply to all benefit years beginning after the effective date of the act.

ANNOTATIONS

1. Duration of benefits.

Version of Vermont's Unemployment Compensation Act in effect at the time of the claimant's termination did not limit her eligibility to the period between the date that she actually left her employment and the effective date of her resignation. Kelley v. Dep't of Labor, 197 Vt. 155, 101 A.3d 895 (2014).

Cited. Littlefield v. Department of Employment & Training, 145 Vt. 247, 487 A.2d 507 (1984).

§ 1340a. Self-Employment Assistance Program.

  1. As used in this section:
    1. "Full-time basis" means that the individual is devoting the necessary time as determined by the Commissioner to establish a business that will serve as a full-time occupation for that individual.
    2. "Regular benefits" shall have the same meaning as in subdivision 1421(5) of this title.
    3. "Self-employment assistance activities" means activities approved by the Commissioner in which an individual participates for the purpose of establishing a business and becoming self-employed, including entrepreneurial training, business counseling, and technical assistance.
    4. "Self-employment assistance allowance" means an allowance payable in lieu of regular benefits from the Unemployment Compensation Trust Fund to an individual who meets the requirements of this section.
    5. "Self-Employment Assistance Program" means the program under which an individual who meets the requirements of subsection (d) of this section is eligible to receive an allowance in lieu of regular benefits for the purpose of assisting that individual in establishing a business and becoming self-employed.
  2. The weekly amount of the self-employment assistance allowance payable to an individual shall be equal to the weekly benefit amount for regular benefits otherwise payable pursuant to this title.
  3. The maximum amount of the self-employment assistance allowance paid pursuant to this section shall not exceed the maximum amount of benefits established pursuant to section 1340 of this title with respect to any benefit year.
    1. An individual may receive a self-employment assistance allowance if that individual: (d) (1)  An individual may receive a self-employment assistance allowance if that individual:
      1. is eligible to receive regular benefits or would be eligible to receive regular benefits except for the requirements described in subdivisions (2)(A) and (B) of this subsection (d);
      2. is identified by a worker profiling system as an individual likely to exhaust regular benefits;
      3. has received the approval of the Commissioner to participate in a program providing self-employment assistance activities;
      4. is engaged actively on a full-time basis in activities that may include training related to establishing a business and becoming self-employed; and
      5. has filed a weekly claim for the self-employment assistance allowance and provided the information the Commissioner requires.
    2. A self-employment allowance shall be payable to an individual at the same interval, on the same terms, and subject to the same conditions as regular benefits pursuant to this chapter, except:
      1. the requirements of section 1343 of this title, relating to availability for work, efforts to secure work, and refusal to accept work, are not applicable to the individual; and
        1. the individual is not considered to be self-employed pursuant to subdivision 1301(24) of this title; (B) (i) the individual is not considered to be self-employed pursuant to subdivision 1301(24) of this title;
        2. an individual who meets the requirements of this section shall be considered to be unemployed pursuant to section 1338 of this title; and
        3. an individual who fails to participate in self-employment assistance activities or who fails to engage actively on a full-time basis in activities, including training, relating to the establishment of a business and becoming self-employed shall be disqualified from receiving an allowance for the week in which the failure occurs.
  4. The self-employment assistance allowance may be paid to up to 35 qualified individuals at any time, provided that the number of qualified individuals receiving a self-employment assistance allowance at any time shall not exceed five percent of the total number of individuals receiving regular benefits at that time.
    1. The self-employment assistance allowance shall be charged to the Unemployment Compensation Trust Fund. (f) (1)  The self-employment assistance allowance shall be charged to the Unemployment Compensation Trust Fund.
    2. In the event that the self-employment assistance allowance cannot be charged to the Unemployment Compensation Trust Fund pursuant to subdivision (1) of this subsection, the allowance shall be charged in accordance with section 1325 of this title.
  5. The Commissioner may approve a program upon determining that it will provide self-employment assistance activities to qualified individuals.
    1. The Commissioner shall adopt rules to implement this section. (h) (1)  The Commissioner shall adopt rules to implement this section.
    2. The rules adopted pursuant to this subsection shall include a detailed explanation of how an individual may apply for and establish eligibility for the Self-Employment Assistance Program and any criteria that the Commissioner will consider in determining whether to approve a program.
  6. The Commissioner may suspend the Self-Employment Assistance Program with approval of the Secretary of Administration and notice to the House Committee on Commerce and Economic Development and the Senate Committee on Finance in the event that the Program presents unintended adverse consequences to the Unemployment Compensation Trust Fund.
  7. The Self-Employment Assistance Program may not result in any cost to the Unemployment Trust Fund in excess of the cost that would be incurred by the State and charged to the Fund if the Program were not in operation.

    Added 2019, No. 85 (Adj. Sess.), § 21, eff. Feb. 20, 2020.

History

Prior law. Former § 1340a, relating to the Self-Employment Assistance Program, was derived from 2013, No. 173 (Adj. Sess.), § 4 and was repealed by 2013, No. 173 (Adj. Sess.), § 7, eff. January 1, 2017.

§ 1341. Repealed. 1965, No. 76, § 2, eff. May 26, 1965.

History

Former § 1341. Former § 1341, relating to benefits in seasonal employments, was derived from V.S. 1947, § 5376; and 1937, No. 171 , § 4.

§ 1342. Repealed. 1959, No. 83, § 1, eff. April 2, 1959.

History

Former § 1342. Former § 1342, relating to benefits to individuals in military service, was derived from 1951, No. 115 ; V.S. 1947, § 5377; 1947, No. 197 , § 1; 1945, No. 143 , § 1; 1943, No. 122 , § 1; and 1941, No. 158 , § 1.

§ 1343. Conditions.

  1. An unemployed individual shall be eligible to receive benefits with respect to any week only if the Commissioner finds that all of the following requirements are met and the individual:
    1. Has registered for work at and thereafter has continued to report at an employment office in accordance with regulations prescribed by the Board.
    2. Has made a claim for benefits in accordance with the provisions of section 1346 of this title.
    3. Is able to work, and is available for work; provided, that in determining the availability of any individual during any week, the Commissioner may require, in addition to registration at any employment office, that the individual participate in reemployment services, or at any time make such other efforts to secure suitable work as the Commissioner may reasonably direct under the circumstances and to supply proper evidence thereof; and shall, if the individual fails without good cause to do so, be ineligible for each week such failure continues; provided further that no claimant shall be considered ineligible in any week of unemployment for failure to comply with the provisions of this subdivision if such failure is due to an illness or disability that occurs after the claimant has registered for work, filed a claim for benefits and during a week for which the individual was entitled to waiting period credit or benefit payments, and no work that would have been considered suitable but for the illness or disability has been offered after the beginning of such illness or disability.
    4. [Repealed.]
    5. Qualifies for a weekly benefit computed in accordance with section 1338 of this title.
    6. Participates in reemployment services, such as job search assistance services, if he or she has been determined to be likely to exhaust regular benefits and needs reemployment services pursuant to a profiling system established by the Commissioner.
    7. Is not self-employed or engaged in self-employment to the extent that it makes him or her unavailable for work.
    8. Has given written notice of resignation to his or her employer and the employer subsequently made the termination of employment effective prior to the date of termination as given in the notice. Provided that the claimant could not establish good cause for leaving work pursuant to subdivision 1344(a)(2)(A) of this title and was not discharged for misconduct as provided in subdivision 1344(a)(1)(A) or for gross misconduct as provided in subdivision 1344(a)(2)(B), in no case shall unemployment benefits awarded under this subdivision exceed four weeks or extend beyond the date of separation as provided in the employee's notice to the employer.
  2. Notwithstanding any other provisions of this chapter, any otherwise eligible claimant regularly attending a training course or program approved for him or her by the Commissioner shall be deemed to be available for work and while attending the course and making satisfactory progress in the training shall not be denied benefits solely because of his or her attendance at the course or because of his or her refusal of an offer of suitable work. Benefits paid to an eligible claimant regularly attending a training course or program approved pursuant to this subsection for any unemployment following his or her refusal of an offer of suitable work, shall not be charged against the experience rating record of any employer, but shall be charged to the Fund.
  3. After March 31, 1984 benefits are payable on the basis of service in employment as defined in subdivisions 1301(6)(A)(ix) and (x) of this title, in the same amount, on the same terms, and subject to the same conditions as benefits payable on the basis of other service subject to this chapter, except that:
    1. With respect to services performed in an instructional, research, or principal administrative capacity for an educational institution, benefits shall not be payable on the basis of such services for any week of unemployment commencing during the period between two successive academic years or terms (or, when an agreement provides instead for a similar period between two regular but not successive terms, during such period) or during a period of paid sabbatical leave provided for in the individual's contract, to any individual if such individual performs such services in the first of such academic years or terms and if there is a contract or reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms.
    2. With respect to services performed in any other capacity for an educational institution benefits shall not be payable on the basis of such services to any individual for any week of unemployment that commences during a period between two successive academic years or terms if such individual performs such services in the first of such academic years or terms and there is a reasonable assurance that such individual will perform such services for any educational institution in the second of such academic years or terms, except that if benefits are denied to any individual under this subdivision and such individual was not offered an opportunity to perform such services for the educational institution for the second of such academic years or terms, such individual shall be entitled to a retroactive payment of the benefits for each week for which the individual filed a timely claim for benefits and for which benefits were denied solely by reason of this subdivision.
    3. With respect to any services described in subdivision (1) or (2) of this subsection, benefits shall not be payable on the basis of services in any such capacities to any individual for any week that commences during an established and customary vacation period or holiday recess if such individual performs such services in the period immediately before such vacation period or holiday recess, and there is a reasonable assurance that such individual will perform such services in the period immediately following such vacation period or holiday recess.
    4. With respect to any services described in subdivision (1) or (2) of this subsection, benefits shall not be payable on the basis of services in any such capacities as specified in subdivisions (1), (2), and (3) to any individual who performed such services in an educational institution while in the employ of an educational service agency.  As used in this subdivision, the term "educational service agency" means a governmental agency or governmental entity that is established and operated exclusively for the purpose of providing such services to one or more educational institutions.
  4. Notwithstanding any other provision of this chapter, any otherwise eligible claimant who was separated from employment due to an accident or injury resulting in a temporary total disability for which the claimant received workers' compensation benefits under chapter 9 of this title shall be entitled to receive, after the termination of the period of temporary total disability, benefits that would have been available at the time of separation from employment. Payment of benefits for any week under this section shall be made only if, at the time the claimant files the initial claim, he or she was not monetarily eligible for benefits under subsection 1338(d) of this title and the claim is filed within six months after the termination of the period of temporary total disability.
  5. After December 31, 1977, benefits shall not be paid to any individual on the basis of any services, substantially all of which consist of participating in sports or athletic events or training or preparing to so participate, for any week that commences during the period between two successive sport seasons, or similar periods, if such individual performed such services in the first of such seasons, or similar periods, and there is a reasonable assurance that such individual will perform such services in the later of such seasons, or similar periods.
    1. After December 31, 1977, benefits shall not be payable on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time the services were performed, was lawfully present for purposes of performing the services, or was permanently residing in the United States under color of law at the time the services were performed, including an alien who was lawfully present in the United States as a result of the application of the provisions of section 203(a)(7) or section 212(d)(5) of the Immigration and Nationality Act. Provided, that any modifications to the provisions of section 3304(a)(14) of the Federal Unemployment Tax Act as provided by Public Law 94-566 that specify other conditions or other effective date than stated herein for the denial of benefits based on services performed by aliens and which modifications are required to be implemented under State law as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act, shall be deemed applicable under the provisions of this section. (f) (1)  After December 31, 1977, benefits shall not be payable on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time the services were performed, was lawfully present for purposes of performing the services, or was permanently residing in the United States under color of law at the time the services were performed, including an alien who was lawfully present in the United States as a result of the application of the provisions of section 203(a)(7) or section 212(d)(5) of the Immigration and Nationality Act. Provided, that any modifications to the provisions of section 3304(a)(14) of the Federal Unemployment Tax Act as provided by Public Law 94-566 that specify other conditions or other effective date than stated herein for the denial of benefits based on services performed by aliens and which modifications are required to be implemented under State law as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act, shall be deemed applicable under the provisions of this section.
    2. Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits.
    3. In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to such individual are not payable because of his or her alien status shall be made except upon a preponderance of the evidence.

      Amended 1959, No. 51 , § 3; 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1963, No. 84 , § 4; 1965, No. 94 , eff. June 14, 1965; 1971, No. 77 , § 6, eff. Dec. 31, 1971; 1977, No. 64 , §§ 17, 24, eff. Jan. 1, 1978; 1981, No. 86 , § 1, eff. May 3, 1981, § 12, eff. May 10, 1981; 1981, No. 182 (Adj. Sess.); 1983, No. 16 , § 9, eff. April 4, 1983; 1983, No. 124 (Adj. Sess.), §§ 4, 5, eff. April 1, 1984; 1989, No. 132 (Adj. Sess.), § 6; 1991, No. 183 (Adj. Sess.), § 5; 1993, No. 177 (Adj. Sess.), § 3; 1997, No. 101 (Adj. Sess.), § 8; 1999, No. 126 (Adj. Sess.), § 2; 2001, No. 56 , § 4; 2009, No. 124 (Adj. Sess.), § 6, eff. July 1, 2012; 2009, No. 124 (Adj. Sess.), § 16, eff. July 1, 2017; 2013, No. 173 (Adj. Sess.), § 5; 2017, No. 74 , § 51.

History

Source. 1953, No. 146 , § 4. 1949, No. 130 . V.S. 1947, § 5378. 1947, No. 198 . 1943, No. 124 , § 9. 1941, No. 152 , § 1. 1941, No. 150 , § 3. 1939, No. 181 , §§ 10, 11. 1937, No. 171 , § 5. 1936, No. 1 (Sp. Sess.), § 4.

Reference in text. Sections 203(a)(7) and 212(d)(5) of the Immigration and Nationality Act, referred to in subdiv. (f)(1), are codified as 8 U.S.C. §§ 1153(a)(7) and 1182(d)(5), respectively.

Section 3304(a)(14) of the Federal Unemployment Tax Act, referred to in subdiv. (f)(1), is codified as 26 U.S.C. § 3304(a)(14).

2013. In subdivision (c)(4), in the second sentence, substituted "As used in" for "For purposes of" preceding "this subdivision" to conform to V.S.A. style.

Revision note - In subdiv. (a)(3), substituted "this subdivision" for "this paragraph" to conform reference to V.S.A. style.

Amendments--2017. Subsec. (b): In the second sentence, deleted the comma following "program"; and substituted "pursuant to this subsection" for "as above provided," preceding "for any unemployment".

Amendments--2013 (Adj. Sess.). Subdiv. (a)(8): Added.

Amendments--2009 (Adj. Sess.) Subdiv. (a)(1): Substituted "with regulations prescribed by the board" for "with such regulations as the board may prescribe" following "accordance".

Subdiv. (a)(3): Inserted "participate in reemployment services, or" following "individual" in the first sentence.

Subdiv. (a)(4): Added.

Amendments--2001. Subsec. (a): Amended generally.

Amendments--1999 (Adj. Sess.). Subdiv. (a)(4): Repealed.

Amendments--1997 (Adj. Sess.). Added subdiv. (a)(7).

Amendments--1991 (Adj. Sess.). Subdiv. (a)(6): Added.

Subsec. (d): Added.

Amendments--1989 (Adj. Sess.). Subdiv. (f)(1): In the first sentence, substituted "payable" for "paid" preceding "on the basis", "was" for "has been" preceding "lawfully admitted" and "at the time services were performed, was lawfully present for purposes of performing the services, or was" for "or otherwise is" following "permanent residence", inserted "at the time the services were performed" following "color of law" and substituted "was" for "is" preceding "lawfully present".

Amendments--1983 (Adj. Sess.). Subsec. (c): Amended generally.

Subsec. (d): Repealed.

Amendments--1983. Subsec. (d): Deleted "other than an institution of higher education" following "educational institution" in the third sentence.

Amendments--1981 (Adj. Sess.). Subsec. (d): Added the third sentence.

Amendments--1981. Subdiv. (a)(3): Inserted "filed a claim for benefits and during a week for which he was entitled to waiting period credit or benefit payments" following "registered for work".

Subdiv. (a)(4): Added "during his benefit year and any extended eligibility period" following "one week" at the end of the first sentence, deleted former subdiv. (c) and redesignated former subdiv. (D) as subdiv. (C).

Amendments--1977. Subsec. (c): Added "before January 1, 1978" preceding "benefits based on service in" and substituted "employment as defined in sections 1301(6)(A)(ix) and 1301(6)(A)(x)" for "the employ of an employer defined in sections 1301(5)(B) and 1301(5)(C)" thereafter.

Subsec. (d): Added.

Subsec. (e): Added.

Subsec. (f): Added.

Amendments--1971. Designated first paragraph as subsec. (a), redesignated subdiv. (6) as subsec. (b) and added subsec. (c).

Amendments--1965. Added subdiv. (6).

Amendments--1963. Subdiv. (5): Amended generally.

Amendments--1961. Introductory clause: Substituted "commissioner" for "board" preceding "finds".

Subdiv. (3): Substituted "commissioner" for "board" preceding "may require" and preceding "may reasonably".

Amendments--1959 (Adj. Sess.). Introductory clause: Substituted "board" for "commission" preceding "finds".

Subdiv. (1): Substituted "board" for "commission" preceding "may prescribe".

Subdiv. (3): Substituted "board" for "commission" preceding "may require" and preceding "may reasonably".

Amendments--1959. Subdiv. (5): Amended generally.

Applicability--1963 amendment. 1963, No. 84 , § 6, provided that the amendment to subdiv. (5) would apply to all benefit years beginning after July 1, 1963.

Effective date of amendments. 2009, No. 124 (Adj. Sess.), § 15, provides that subdivision (a)(3) of this section shall take effect on passage [May 24, 2010], notwithstanding the fact that the amendments to (a)(1) and the addition of (a)(4) are not effective until July 1, 2012.

Repeal of subdivision (a)(4). 2009, No. 124 (Adj. Sess.), § 16 provides for the repeal of subdivision (a)(4) on July 1, 2017 or when the unemployment compensation fund has a positive balance, whichever is later. The fund achieved a positive balance in 2012 and continued to have a positive balance on July 1, 2017. Accordingly, subdivision (a)(4) was repealed pursuant to 2009, No. 124 (Adj. Sess.), § 16 on July 1, 2017.

Cross References

Cross references. Disqualifications for benefits, see § 1344 of this title.

Eligibility requirements for extended benefits, see § 1423 of this title.

Eligibility requirements for short-time compensation benefits, see § 1457 of this title.

ANNOTATIONS

Analysis

1. Constitutionality.

Provision of subsection (d) of this section that a teacher with a contract or reasonable assurance that he would perform services during the coming school year could not be paid unemployment compensation between school years had a rational relation to a legitimate governmental interest and thus would not be held to discriminate against teacher and deny him equal protection where teacher failed to demonstrate that the class to which he belonged was protected or that the provision impinged on a fundamental interest. Gilbert v. Department of Employment Security, 139 Vt. 24, 421 A.2d 1295 (1980).

2. Construction with other laws.

Whether a claimant was discharged may have an impact on whether he may be disqualified from unemployment benefits by operation of section 1344 of this title, but it can have no impact on whether a claimant is eligible initially to receive benefits under this section. Santwire v. Department of Employment & Training, 148 Vt. 142, 530 A.2d 571 (1987).

For clarity, the eligibility provisions set out in this section must be read with the disqualification provisions set out in section 1344 of this title. Willard v. Vermont Unemployment Compensation Commission, 122 Vt. 398, 173 A.2d 843 (1961).

3. Ability to work.

Employment Security Board could conclude that unemployment compensation claimant was unable to work where claimant's physician stated, in conflicting medical reports and letters to claimant's attorney all made between September 4 and November 18, that claimant could work part-time, could work full-time at light work, was not able to maintain a gainful occupation on a regular basis, and was able to do any suitable work. Ellis v. Department of Employment Security, 133 Vt. 533, 346 A.2d 221 (1975).

4. Availability for work .

Availability for work as prescribed by subdivision (a)(3) of this section is a factual question which must be decided on a case by case basis. Stoodley v. Department of Employment Security, 141 Vt. 457, 449 A.2d 980 (1982).

Question of availability for work in relation to eligibility for unemployment compensation benefits lends itself to resolution solely on a case by case basis, and only when facts peculiar to claim under review deny the existence of reasonable availability may benefits be refused. Carson v. Department of Employment Security, 135 Vt. 312, 376 A.2d 355 (1977).

Whether a partially unemployed claimant is available for work in any given week in which part-time work is to be had must necessarily turn on the facts of each case. Jenkins v. Department of Employment Security, 135 Vt. 210, 373 A.2d 533 (1977).

Before a partially unemployed claimant may be found to be unavailable in any week in which a portion of the proffered part-time work is missed, it must be first determined that the absence was so unreasonable as to render claimant not reasonably available for employment; under this standard, claimant is either unavailable and disqualified, or is eligible for the benefits provided for in section 1339 of this title. Jenkins v. Department of Employment Security, 135 Vt. 210, 373 A.2d 533 (1977).

*5. Attachment to labor market.

Finding that unemployed store clerk was employed on a part-time basis as a postal clerk on Saturday mornings did not demonstrate that she had substantially removed herself from the labor market as a result of her commitment to her part-time job even if it could be said that store clerks generally work on a six day a week basis, since it was difficult to discern how three hours spent on Saturday mornings significantly impaired her availability for other employment for which she was qualified. Carson v. Department of Employment Security, 135 Vt. 312, 376 A.2d 355 (1977).

To qualify for Vermont unemployment compensation an applicant must be available for work in a labor market of sufficiently large geographical area as to provide or encompass employers who use the type of services offered by that applicant. In re Barcomb, 132 Vt. 225, 315 A.2d 476 (1974).

Degree of specialization in the services offered to prospective employers by applicant for unemployment compensation affects the geographical size of applicant's labor market for purposes of requirement of subdivision (a)(3) that he be available for work to be eligible for benefits. In re Barcomb, 132 Vt. 225, 315 A.2d 476 (1974).

Type of work sought and proximity for demand for those services is far more important in defining labor market when considering application for unemployment compensation than presence or absence of automobile transportation, without more, and no strict rule can be laid down that an automobile is or is not required in order to be "available for work." In re Barcomb, 132 Vt. 225, 315 A.2d 476 (1974).

Person of highly specialized skills must be willing to travel further than persons having more generally usable skills and to accede to labor market of sufficient geographical area to include employers utilizing those specialized skills before failure to secure employment might lead to denial of unemployment compensation benefits under subdivision (a)(3) of this section. In re Barcomb, 132 Vt. 225, 315 A.2d 476 (1974).

Person holding himself out as available for any "light work" may restrict labor market to his home town if he shows that "light work" is required by employers there. In re Barcomb, 132 Vt. 225, 315 A.2d 476 (1974).

Employment Security Board's conclusions that unemployment compensation claimant was not available for work could not stand, and denial of compensation would be reversed, where claimant contacted seven employers within two miles of his home over 30 times, lived in an urban area of 8,000 to 10,000 people, a labor market thus existed within walking distance of his home and there was no evidence that he had materially limited his attachment to an existing labor market by failing to use public transportation. In re Dunn, 131 Vt. 261, 305 A.2d 602 (1973).

Issue of availability for work is to be examined in terms of claimant's attachment to labor market, rather than in terms of quantitative measure of his disability. Willard v. Vermont Unemployment Compensation Commission, 122 Vt. 398, 173 A.2d 843 (1961).

Burden of establishing attachment to a labor market is on one who has accepted a pension which is designed to pay compensation in lieu of employment, whether conditioned on age or infirmity. Willard v. Vermont Unemployment Compensation Commission, 122 Vt. 398, 173 A.2d 843 (1961).

Incapacitating illness and subsequent disability of a claimant for unemployment compensation adds to his burden of establishing his reattachment to the labor market and the fact that a claimant terminated his employment for a reason recognized as good cause does not in itself entitle him to benefits. Willard v. Vermont Unemployment Compensation Commission, 122 Vt. 398, 173 A.2d 843 (1961).

Act of taking a pension is only inferentially indicative of withdrawal from the labor market and, as an inference, is subject to being overborne by other proofs showing that a claimant has in fact a genuine attachment to the market. Willard v. Vermont Unemployment Compensation Commission, 122 Vt. 398, 173 A.2d 843 (1961).

*6. Conditions and limitations on work deemed acceptable.

Unreasonable restrictions placed on availability will render a claimant for unemployment compensation benefits unavailable for work. Donahue v. Department of Employment Security, 142 Vt. 351, 454 A.2d 1244 (1982).

Shortness of duration of an individual's unemployment, existence of a definite date of recall, or existence of a continuing attachment to a specific employer are not factors prescribed by subdivision (a)(3) of this section as disqualifying an individual from receipt of unemployment benefits on the basis of unavailability for work, and the rule of liberal and broad construction in favor of the distressed workers prohibits imposition of such a disqualification by judicial decision. Donahue v. Department of Employment Security, 142 Vt. 351, 454 A.2d 1244 (1982).

The purposes of this chapter do not include the right to compensation because personal considerations make acceptance of a suitable job offer inconvenient or difficult, or require an adjustment in the claimant's personal situation that he or she is individually unwilling to make; in such circumstances it is for the Employment Security Board to measure the justification for refusal against the test for availability set forth in this section. Hunt v. Department of Employment Security, 142 Vt. 90, 453 A.2d 391 (1982).

Availability, within unemployment compensation requirement that one must be available for and able to work to receive benefits, must be realistic, and it cannot be so circumscribed that one refuses work which meets the statutory measure of suitability of work offered. Martin v. Department of Employment Security, 138 Vt. 475, 417 A.2d 932 (1980).

Unemployment compensation claimant with a long history of part-time work, who established the existence of a meaningful part-time labor market in her area, could not be denied benefits on the ground that she limited herself and her search for work to part-time work and thus was unavailable for work. Stryker v. Department of Employment Security, 134 Vt. 224, 356 A.2d 534 (1976).

Applicants for unemployment compensation cannot condition availability for work on domestic problems such as lack of transportation to work, at least where there are in fact no jobs which could meet those conditions. In re Barcomb, 132 Vt. 225, 315 A.2d 476 (1974).

The fact that claimant for unemployment compensation benefits had problems with transportation, babysitting and her husband's desire that she not work at night was not good cause for her to limit her availability for the work suitable for her, factory work, to the first shift, and she was properly denied benefits. In re Prouty, 131 Vt. 504, 310 A.2d 12 (1973).

Unemployment compensation claimant cannot claim availability for work and at the same time make his availability improperly conditional. In re Platt, 130 Vt. 329, 292 A.2d 822 (1972).

An unemployment compensation claimant may place some restrictions on the type of work he will accept, and he need not accept work entirely foreign to his ability, training and experience, but compensation will be denied where the restrictions are undue or so conditional as to rebut the existence of availability. In re Platt, 130 Vt. 329, 292 A.2d 822 (1972).

Conditions and limitations which a claimant for unemployment compensation imposes upon his employment, whether voluntary or involuntary, may render him unavailable for work and bar his recovery of unemployment benefits. Willard v. Vermont Unemployment Compensation Commission, 122 Vt. 398, 173 A.2d 843 (1961).

A willingness to be employed conditionally does not necessarily meet the test of availability. Willard v. Vermont Unemployment Compensation Commission, 122 Vt. 398, 173 A.2d 843 (1961).

7. Suitable work.

Suitable work, within the requirements of subdivision (a)(3) of this section and section 1344(a)(2)(c) of this title that one must be available for and able to work to receive benefits, is that which an employee is capable of performing and is reasonably related to his qualifications. Gutches v. Department of Employment Security, 141 Vt. 587, 450 A.2d 1146 (1982).

An unemployment compensation claimant will not be disqualified from receiving benefits if he refuses to accept unsuitable employment. Wallace v. Department of Employment Security, 134 Vt. 513, 365 A.2d 517 (1976).

8. Illness or disability.

Claimant for unemployment compensation, whose ability to work and availability for work are so limited, because of ill health, that he is not able to accept some substantial employment, does not meet the requirements of this section. Willard v. Vermont Unemployment Compensation Commission, 122 Vt. 398, 173 A.2d 843 (1961).

A determination of total disability by Veteran's Administration does not, of itself, compel denial of unemployment compensation, although such a determination has evidentiary value with respect to availability of claimant for work. Willard v. Vermont Unemployment Compensation Commission, 122 Vt. 398, 173 A.2d 843 (1961).

9. Burden of proof.

Availability for work is prima facie established by a showing of proper registration for work. Donahue v. Department of Employment Security, 142 Vt. 351, 454 A.2d 1244 (1982).

Claimant for unemployment benefits bears the burden of establishing her ability to work and availability for suitable employment, preconditions to eligibility for benefits under subdivision (a)(3) of this section. Stoodley v. Department of Employment Security, 141 Vt. 457, 449 A.2d 980 (1982).

Ordinarily, a claimant for unemployment benefits can make a prima facie showing of availability for work, a precondition to eligibility for benefits under subdivision (a)(3) of this section, by registering at an employment office and providing the department with evidence of compliance with such other efforts to secure suitable work as the commissioner may reasonably direct. Stoodley v. Department of Employment Security, 141 Vt. 457, 449 A.2d 980 (1982).

Unemployment compensation claimant had burden of proving that he was able to perform, and available for, suitable work. Ellis v. Department of Employment Security, 133 Vt. 533, 346 A.2d 221 (1975).

Ordinarily, availability for work is prima facie established by a showing of proper registration with the Unemployment Compensation Commission, but a claimant who so limits his availability as to be tantamount to a refusal to accept suitable work has the burden of showing good cause for such a refusal. In re Prouty, 131 Vt. 504, 310 A.2d 12 (1973).

Unemployment compensation claimant made a showing that a labor market for the light work he was able to do existed in the geographical area where he sought employment, and the Employment Security Board should have so found on appeal from referee's decision affirming claims examiner's denial of claim, where claimant showed he lived in an urban community of 8,000 to 10,000, sought employment within walking distance of his home, contacted seven employers over 30 times and stated he had sought over five types of positions. In re Dunn, 131 Vt. 261, 305 A.2d 602 (1973).

Unemployment compensation claimant has burden of establishing availability for work. In re Platt, 130 Vt. 329, 292 A.2d 822 (1972).

Ordinarily, availability for work is prima facie established by a showing of proper registration for work with unemployment compensation commission, subject only to Commission's right to require claimant to provide evidence of efforts to secure suitable work. Willard v. Vermont Unemployment Compensation Commission, 122 Vt. 398, 173 A.2d 843 (1961).

10. Teachers.

Employment Security Board did not err in finding that the claimant, an adjunct professor, had a reasonable assurance of employment for the next regularly scheduled academic term when it found that the claimant's employment was subject to one contingency, class size or low enrollment, that this contingency was not within the college's discretion, and that given the fact that all three of the claimant's courses had been filled for the four consecutive semesters he taught, it was highly probable that all three courses would fill the following term. Beasley v. Dep't of Labor Champlain College, 208 Vt. 433, 199 A.3d 553 (2018).

Where on the last day of the school year teacher involved in labor dispute signed a contract to teach at another school the following September; Employment Security Board's conclusions that subdivision (c)(1) of this section, denying teacher benefits between academic terms, applied, and that the fact that a labor dispute was in progress was 'totally irrelevant' in the absence of authority supporting teacher's claim that the labor dispute made subdivision (c)(1) inapplicable, were not erroneous. Delneo v. Department of Employment & Training, 148 Vt. 388, 533 A.2d 1190 (1987).

Teacher's aids, who devoted over one-half of their time at work to working directly with students in the administration and correction of tests, tutoring of students in mathematics, reading and other subjects, and using films, tapes and work books, and, in addition, participated in preparation of student evaluations and conducted conferences between parents, students and teachers, were performing services in the role of teachers and were therefore excluded from receipt of unemployment compensation benefits during period between academic years by provision of this section excluding persons serving in an instructional capacity for an educational institution with a reasonable assurance that they will perform a similar service for the same educational institution in the next academic year. Riddel v. Department of Employment Security, 140 Vt. 82, 436 A.2d 1086 (1981).

Payment of teachers' aides, who operated in the role of teachers, on an hourly basis rather than upon a salary basis, as teachers were paid, did not have effect of exempting aides from operation of provision of this section excluding from receipt of unemployment compensation benefits during period between academic years of persons serving in an instructional capacity for an educational institution with a reasonable assurance that they will perform similar service for the same educational institution in the next academic year, under which provision teachers were excluded from benefits. Riddel v. Department of Employment Security, 140 Vt. 82, 436 A.2d 1086 (1981).

Teacher who in June received verbal assurance that he would be offered his position for the next academic year and received a written confirmation of the assurance was properly denied unemployment compensation under this section's provision that compensation not be paid between school years if the teacher had a contract or a reasonable assurance that he would perform services in the coming year; and a written contract was not necessary. Gilbert v. Department of Employment Security, 139 Vt. 24, 421 A.2d 1295 (1980).

11. Eligibility.

Even if a claimant's benefit period began on February 2, 2016, when the claimant called the Unemployment Division after realizing that her worker's compensation benefits had stopped, instead of when she first called the Unemployment Division in May 2015, she would not have been monetarily eligible for unemployment benefits under any of the four monetary methods provided by law because she would have received nothing since February 2, 2016 was more than six months after March 20, 2015. Skidmore v. Dep't of Labor, 205 Vt. 215, 172 A.3d 1210 (2017).

Cited. Nurmi v. Vermont Employment Security Board, 124 Vt. 42, 197 A.2d 483 (1963), overruled on other grounds, Shufelt v. Department of Employment & Training (1987) 148 Vt. 163, 531 A.2d 894; In re Moore, 128 Vt. 581, 269 A.2d 853 (1970); Wheeler v. State of Vermont, 335 F. Supp. 856 (D. Vt. 1972); Archer v. Department of Employment Security, 133 Vt. 279, 336 A.2d 172 (1975); Gale v. Department of Employment Security, 136 Vt. 75, 385 A.2d 1073 (1978); Anthony Adams AIA Architect v. Department of Employment Security, 139 Vt. 413, 430 A.2d 446 (1981); Jones v. Department of Employment Security, 140 Vt. 552, 442 A.2d 463 (1982); Rushlow v. Department of Employment & Training, 144 Vt. 328, 476 A.2d 139 (1984); Littlefield v. Department of Employment & Training, 145 Vt. 247, 487 A.2d 507 (1984); City of Burlington v. Department of Employment & Training, 148 Vt. 151, 530 A.2d 573 (1987); Shufelt v. Department of Employment & Training, 148 Vt. 163, 531 A.2d 894 (1987).

§ 1344. Disqualifications.

  1. An individual shall be disqualified for benefits:
    1. For not more than 15 weeks nor less than six weeks immediately following the filing of a claim for benefits (in addition to the waiting period) as may be determined by the Commissioner according to the circumstances in each case, if the Commissioner finds that:
      1. he or she has been discharged by his or her last employing unit for misconduct connected with his or her work; or
      2. he or she was separated from his or her last employing unit because he or she became unable to perform all or an essential part of his or her normal duties in such employment without good cause attributable to such employing unit because of the consequences that flow from his or her conviction of a felony or misdemeanor or from an action or order of a judge or court in any criminal or civil matter. In the event a conviction or the action or order of any judge or court in any criminal or civil matter is rescinded or expunged, the individual may be eligible for benefits from the time the individual would have otherwise been eligible for benefits.
    2. For any week benefits are claimed, except as provided in subdivision (a)(3) of this section, until he or she has presented evidence to the satisfaction of the Commissioner that he or she has performed services in employment for a bona fide employer and has had earnings in excess of six times his or her weekly benefit amount if the Commissioner finds that such individual is unemployed because:
      1. He or she has left the employ of his or her last employing unit voluntarily without good cause attributable to such employing unit. An individual shall not suffer more than one disqualification by reason of such separation. However, an individual shall not be disqualified for benefits if the individual left such employment to accompany a spouse who:
        1. is on active duty with the U.S. Armed Forces and is required to relocate due to permanent change of station orders, activation orders, or unit deployment orders, and when such relocation would make it impractical or impossible, as determined by the Commissioner, for the individual to continue working for such employing unit; or
        2. holds a commission in the U.S. Foreign Service and is assigned overseas, and when such relocation would make it impractical or impossible, as determined by the Commissioner, for the individual to continue working for such employing unit.
      2. He or she has been discharged by his or her last employing unit for gross misconduct connected with his or her work. As used in this section, "gross misconduct" means conduct directly related to the employee's work performance that demonstrates a flagrant, wanton, and intentional disregard of the employer's business interest, and that has direct and significant impact upon the employer's business interest, including theft, fraud, intoxication, intentional serious damage to property, intentional infliction of personal injury, any conduct that constitutes a felony, or repeated incidents after written warning of either unprovoked insubordination or public use of profanity. An individual shall not suffer more than one disqualification by reason of such separation.
      3. He or she has failed, without good cause, either to apply for available, suitable work when so directed by the employment office or the Commissioner, or to accept suitable work when offered him or her, or has during the course of a job interview for available employment made verbal statements that are either untrue, show an unreasonable lack of interest, or are calculated to preclude an offer of work or a directive being made, or to return to his or her customary self-employment, if any, when so directed by the Commissioner.  An individual shall not suffer more than one disqualification for these causes.
      4. In determining whether or not any work or employment is suitable for an individual for purposes of this subdivision, the Commissioner shall consider the degree of risk involved to his or her health, safety, and morals, his or her physical fitness and prior training, his or her experience and prior earnings, his or her length of unemployment and prospects for securing local work in his or her customary occupation, and the distance of the available work from his or her residence.
      5. Notwithstanding any other provisions of this chapter, no work shall be deemed suitable and benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions:
        1. if the position offered is vacant due directly to a strike, lockout, or other dispute;
        2. if the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality;
        3. if, as a condition of being employed, the individual would be required to join a union or to resign from or refrain from joining any bona fide labor organization.
        1. Notwithstanding any other provisions of this chapter, no otherwise eligible individual shall be denied benefits for any week because: (F) (i) Notwithstanding any other provisions of this chapter, no otherwise eligible individual shall be denied benefits for any week because:
          1. he or she is in training approved under section 236(a)(1) of the Trade Act of 1974, 19 U.S.C. § 2296(a) ;
          2. nor shall such individual be denied benefits with respect to any week in which he or she is in such approved training by reason of leaving work to enter such training, provided the work left is not suitable employment, as defined in section 236(e) of the Trade Act of 1974, 19 U.S.C. § 2296(e) ; or
          3. because of the application to any such week in training of provisions in this law (or any federal unemployment insurance law administered by this agency), relating to availability for work, active search for work, or refusal to accept work.
        2. Provided that, benefits paid to an eligible claimant regularly attending a training course approved under the Trade Act of 1974, 19 U.S.C. § 2296(e) , following a refusal of work, or leaving of unsuitable work, shall not be charged against the experience-rating record of any employer, but shall be charged to the Fund.
      6. [Repealed.]
      7. [Repealed.]
    3. For not more than six weeks nor less than one week immediately following the filing of a claim for benefits (in addition to the waiting period) as may be determined by the Commissioner according to the circumstances in each case, if the Commissioner finds that he or she has left the employ of his or her last employing unit, without good cause attributable to such employing unit, because of a health condition, as certified by a health care provider, as defined in 18 V.S.A. § 9432(9) , which precludes the discharge of duties inherent in such employment.
    4. For any week with respect to which the Commissioner finds that his or her total or partial unemployment is due to a stoppage of work that exists because of a labor dispute at the factory, establishment, or other premises at which he or she is or was last employed, provided that this subdivision shall not apply if:
      1. the individual is not participating in or financing or directly interested in the labor dispute that caused the stoppage of work; or
      2. the stoppage of work was due solely to a lockout, effected by the employer in order to gain some concession from employees. A lockout does not include a temporary suspension of work in response to:
        1. actual or imminent damage to property of the employer; or
        2. a purposeful effort by employees to reduce productivity.
    5. For any week with respect to which the individual is receiving or has received remuneration in the form of:
      1. wages in lieu of notice; or
      2. vacation pay or holiday pay, provided that:
        1. Vacation pay due at time of separation in accordance with a work agreement (whether a formal contract or established custom) shall be allocated to the period immediately following separation, or if due subsequent to separation, it shall be allocated to the week in which due or the next following week, and that number of weeks immediately following as required to equal the total of the weeks of pay due. Any mutual agreement between the employer and employee(s)(whether or not payment is made), allocating such remuneration to any period during which work is performed, within four weeks prior to the date of separation, shall not be valid for the purpose of determining unemployment compensation entitlement or waiting period credit purposes and such payment shall be allocated to the period immediately following separation.
        2. There shall be no disqualification amount for any holiday.
      3. Severance pay, back pay awards, and back pay settlements. These payments, awards, and settlements shall be allocated to the week(s) and in the manner as specified in the order or agreement, or, in the absence of such specificity, to the week(s) and in the manner that, in the judgment of the Commissioner, would be reasonable.
      4. Compensation for temporary partial disability or temporary total disability under the workers' compensation law of any state or under a similar law of the United States.
        1. A pension (which shall include a governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment) under a plan maintained or contributed to by a base period or chargeable employer. The weekly benefit amount payable to such individual for such week shall be reduced (but not below zero): (E) (i) A pension (which shall include a governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment) under a plan maintained or contributed to by a base period or chargeable employer. The weekly benefit amount payable to such individual for such week shall be reduced (but not below zero):
          1. by the entire prorated weekly amount of the pension if no contributions to the plan were made by the individual;
          2. by no part of the pension if the entire contributions to the plan were provided by such individual, or by the individual and an employer (or any other person or organization); or
          3. by no part of the pension if the services performed by the individual during the base period (or remuneration received for such services) for such employer did not affect the individual's eligibility for, or increase the amount of, such pension, retirement or retired pay, annuity, or similar payment.
        2. Provided that if such remuneration specified in this subdivision, (after applying the provisions of this subdivision) is less than the benefits that would otherwise be due under this chapter, he or she shall be entitled to receive for such week, if otherwise eligible, benefits reduced by the amount of such remuneration (after applying the provisions of this subdivision) after rounding such remuneration to the next higher dollar and the provisions of subdivision 1301(9) and sections 1338a and 1339 of this title do not apply.
      5. [Repealed.]
    6. For any week with respect to which or a part of which he or she has received or is seeking to receive unemployment benefits under an unemployment compensation law of another state or of the United States, provided that if the appropriate agency of such other state or of the United States finally determines that he or she is not entitled to such unemployment benefits, this disqualification shall not apply.
  2. In periods of "high level unemployment" an individual shall be disqualified for benefits for not more than 12 nor less than six consecutive weeks immediately following the filing of a claim for benefits, as may be determined by the Commissioner according to the circumstances, when it is found that he or she would otherwise be disqualified under the provisions of subdivision (a)(2)(A) of this section, and except that the disqualification provided by this subdivision shall terminate if an individual has performed service in any employment as provided by subdivision (a)(2) of this section.
  3. Notwithstanding any other provision of this chapter, any individual who has been disqualified for regular or extended benefits pursuant to the provisions of subdivision (a)(1) or (a)(3) of this section shall not be eligible to receive extended benefits with respect to any week of unemployment in the individual's eligibility period unless the individual has been employed after the beginning date of such disqualification and has earned in excess of four times the individual's weekly benefit amount.

    Amended 1959, No. 236 ; 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1971, No. 77 , § 8, eff. Dec. 31, 1971; 1973, No. 155 (Adj. Sess.), § 3, eff. March 15, 1974; 1973, No. 231 (Adj. Sess.), § 1; 1977, No. 64 , §§ 18, 19, 25(b); 1979, No. 120 (Adj. Sess.), § 9, eff. March 31, 1980; 1981, No. 86 , §§ 3, 6, 13; 1981, No. 165 (Adj. Sess.), § 1; 1981, No. 194 (Adj. Sess.), § 3, eff. Oct. 1, 1982; 1983, No. 16 , § 11, eff. April 4, 1983; 1987, No. 179 (Adj. Sess.); 1989, No. 62 ; 1993, No. 177 (Adj. Sess.), §§ 4-6; 1999, No. 126 (Adj. Sess.), § 1; 2009, No. 124 (Adj. Sess.), § 7, eff. July 1, 2011; 2013, No. 173 (Adj. Sess.), § 10; 2017, No. 74 , § 52; 2019, No. 91 (Adj. Sess.), § 31, eff. March 30, 2020; 2019, No. 91 (Adj. Sess.), § 33, eff. Oct. 1, 2021; 2021, No. 20 , § 222.

History

Source. 1957, No. 148 , § 2. 1957, No. 56 . 1955, No. 210 . 1949, No. 132 . 1949, No. 131 , § 1. V.S. 1947, § 5379. 1941, No. 154 . 1941, No. 153 , § 1. 1939, No. 181 , § 12. 1939, No. 180 , §§ 1, 2, 3. 1937, No. 171 , § 6(e). 1936, No. 1 (Sp. Sess.), § 5(a), (b), (c), (d).

Reference in text. Section 236(a)(1) of the Trade Act of 1974, referred to in subdiv. (a)(2)(F)(i), is codified as 19 U.S.C. § 2296(a)(1).

Section 236(a)(3) of the Trade Act of 1974, referred to in subdiv. (a)(2)(F)(ii), is codified as 19 U.S.C. § 2296(e).

2020 In subdiv. (a)(2)(H)(i), substituted "subdivision (ii)" for "subdivision (2)" to correct the cross-reference.

2015. In subdiv. (a)(3), substituted "18 V.S.A. § 9432(9)" for "18 V.S.A. § 9432(8)" to correct cross-reference.

2013. In subdiv. (a)(2)(B), in the second sentence, substituted "As used in" for "For purposes of" preceding "this section" to conform to V.S.A. style and deleted "but not limited to" following "including" in accordance with 2013, No. 5 , § 4.

2003. Substituted "subdivision 9432(8) of Title 18" for "9432(11) of Title 18" in subdiv. (a)(3) to correct an error in the reference.

Editor's note. Subsection (b) of this section was amended and repealed by Act No. 64 of the 1977 Session. Section 25(b) of the Act repealed subsec. (b) without apparent consideration of the fact that section 19 had amended subdiv. (b)(1). Since section 25(d) of the Act provided that both sections 19 and 25(b) would take effect July 1, 1977, legislative intent as to subsec. (b) is unclear.

Amendments--2021. Subsec. (c): Substituted "subdivision (a)(1) or (a)(3)" for "subdivisions (1) or (3)"; substituted "the individual's" for "his or her" twice; and substituted "the individual" for "he or she" following "unless".

Amendments--2019 (Adj. Sess.) Act No. 91, § 31 rewrote subdiv. (a)(2)(A) and added subdivs. (a)(2)(G), (a)(2)(H), and (a)(5)(F).

Act No. 91, § 33, eff. October 1, 2021, rewrote subdiv. (a)(2)(A) and repealed subdivs. (a)(2)(G), (a)(2)(H), and (a)(5)(F).

Amendments--2017. Subdiv. (a)(2)(A): Substituted "employing" for "employment" in subdivs. (i) and (ii).

Subdivs. (a)(2)(F) and (a)(5)(B) and (E): Amended generally.

Amendments--2013 (Adj. Sess.). Subdiv. (a)(2)(A): Inserted "However, an individual shall not be disqualified for benefits if the individual left such employment to accompany a spouse who:" at the end.

Subdivs. (a)(2)(A)(i) and (a)(2)(A)(ii): Added.

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "15 weeks" for "12 weeks" in subdiv. (1), added the second sentence in subdiv. (2)(B), substituted "individual" for "he or she" in the introductory paragraph of subdiv. (a)(5) and rewrote subdivs. (5)(B) and (C), and deleted former subdiv. (5)(F).

Amendments--1999 (Adj. Sess.). Subdiv. (a)(5)(B)(ii): Amended generally.

Amendments--1993 (Adj. Sess.). Subdiv. (a)(1)(A): Inserted "or she" following "he" and inserted "or her" following "his" in two places.

Subdiv. (a)(1)(B): Substituted "or her conviction" for "being found guilty" preceding "of a felony", added "or from an action or order of a judge or court in any criminal or civil matter" following "misdemeanor" and made other minor changes in phraseology.

Subdiv. (a)(3): Amended generally.

Subdiv. (a)(5): Inserted "or she" preceding "is receiving" and added subdiv. (F).

Amendments--1989. Subdiv. (a)(4): Deleted "he is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work" following "apply if" and made other minor stylistic changes in the introductory paragraph and added subdivs. (A) and (B).

Amendments--1987 (Adj. Sess.). Subdiv. (a)(5)(E): Amended generally.

Amendments--1983. Subdiv. (a)(5)(E)(iv): Inserted "after rounding such remuneration to the next higher dollar" following the second parentheses in the second paragraph.

Amendments--1981 (Adj. Sess.). Subdiv. (a)(2)(F): Added by Act No. 194.

Subdiv. (a)(5)(D): Act No. 165 substituted "workers"' for "workmen's" preceding "compensation".

Amendments--1981. Subsec. (a): Amended generally.

Subsec. (c): Added.

Amendments--1979 (Adj. Sess.). Subdiv. (a)(5): Amended generally.

Amendments--1977. Subdiv. (a)(2): In the introductory paragraph, substituted "division (3) of this section" for "paragraph (3) and subsection (b) below" preceding "until" inserted "he has presented evidence to the satisfaction of the commissioner that" thereafter, deleted "any" preceding "employment" and substituted "for a bona fide employer" for "in this or another state" thereafter and in subdiv. (D), inserted "or employment" preceding "is suitable for an individual" and inserted "for purposes of this subdivision" thereafter.

Subsec. (b): Repealed.

Subdiv. (b)(1): Deleted "(B) and (C)" preceding "of subsection (a) above".

Amendments--1973 (Adj. Sess.). Act No. 155 repealed former subdiv. (4) and redesignated former subdivs. (5)-(7) as subdivs. (4)-(6).

Act No. 231 amended section generally.

Amendments--1971. Subdiv. (8): Repealed.

Amendments--1961. Substituted "commissioner" for "board" throughout the section.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

Amendments--1959. Subdiv. (1): Rewrote the first sentence.

Subdiv. (2): Substituted "six weeks" for "one week" following "less than" in the first sentence.

Effective date of amendments--1981. 1981, No. 86 , § 7, provided that subsec. (c) would take effect April 5, 1981.

1981, No. 86 , § 15, provided that the amendment of subsec. (a) would take effect May 10, 1981.

Effective date of this section. 2009, No. 124 (Adj. Sess.), § 15, provides that subdivisions (a)(1) and (a)(2)(B) of this code section shall take effect on passage [May 24, 2010], notwithstanding the fact that the amendments to subdivisions (a)(5), (a)(5)(B), (a)(5)(C) and (a)(5)(F) are not effective until July 1, 2011.

Effective date of amendment of subdiv. (a)(2)(A) and repeal of subdivs. (a)(2)(G), (a)(2)(H), and (a)(5)(F). 2019, No. 91 (Adj. Sess.), § 38(3), as amended by 2021, No. 51 , § 8, provides: "Secs. 32 and 33 shall take effect on the first day of the calendar quarter following the calendar quarter in which the state of emergency declared in response to COVID-19 pursuant to Executive Order 01-20 is terminated, provided that if the state of emergency is terminated within the final 30 days of a calendar quarter, Secs. 32 and 33 shall take effect on the first day of the second calendar quarter following the calendar quarter in which the state of emergency is terminated." The state of emergency declared in response to COVID-19 pursuant to Executive Order 01-20 ended on June 15, 2021. Therefore, subdiv. (a)(2)(A) was amended and subdivs. (a)(2)(G), (a)(2)(H), and (a)(5)(F) were repealed effective October 1, 2021.

Retroactive effect of amendment to subdivs. (a)(2)(A), (a)(2)(G), (a)(2)(H), and (a)(5)(F). 2020, No. 51 , § 17(a)(2) provides: "Notwithstanding 1 V.S.A. § 214, Sec. 8 (extension of sunset) shall take effect retroactively on March 31, 2021."

Cross References

Cross references. Disqualifications for extended benefits, see § 1423a of this title.

Eligibility conditions, see § 1343 of this title.

I. GENERALLY
1. Construction with other laws.

Whether a claimant was discharged may have an impact on whether he may be disqualified from unemployment benefits by operation of this section, but it can have no impact on whether a claimant is eligible initially to receive benefits under section 1343 of this title. Santwire v. Department of Employment & Training, 148 Vt. 142, 530 A.2d 571 (1987).

For clarity, the eligibility provisions set out in section 1343 of this title must be read with the disqualification provisions set out in this section. Willard v. Vermont Unemployment Compensation Commission, 122 Vt. 398, 173 A.2d 843 (1961).

2. Admissibility and weight of evidence.

Use of hearsay statements in hearings of the Employment Security Board is acceptable practice, as the referee and the Board are not bound by common law or statutory rules of evidence. Bouchard v. Department of Emp. and Training, 174 Vt. 588, 816 A.2d 508 (mem.) (2002).

Where Employment Security Board chose to accept evidence offered by claimant for unemployment benefits indicating that employer's final offer in contract negotiations would have reduced claimant's wages, rather than testimony of employer claiming that the offer was the same as the salary rate claimant had been receiving, since the Board, as a fact finder, was free to accept or reject any of this evidence, its finding that claimant had good cause for quitting attributable to the employer and its award of benefits to her would be affirmed. Branch v. Department of Employment Security, 142 Vt. 609, 458 A.2d 1121 (1983).

Where unemployment compensation claimant was properly refused benefits because, for a personal reason, she refused a job similar to her last job, it was proper to exclude her proffered evidence relating to working conditions and responsibilities of the person who had last had the job offered. Lanctot v. Department of Employment Security, 134 Vt. 281, 356 A.2d 531 (1976).

Unemployment compensation claimant's record of tardiness and absenteeism was admissible, in claim proceeding, as relevant to a determination of the ultimate question whether his resignation from his employment was voluntary and without good cause attributable to his employer. Lane v. Department of Employment Security, 134 Vt. 9, 347 A.2d 454 (1975).

3. Standards of review.

Under provision of this section disqualifying an individual for unemployment compensation benefits when he has been discharged by his last employing unit for misconduct connected with his work, if so found by the Commissioner, it is the Commissioner who is delegated the duty to determine whether the employee was discharged for misconduct, so that Supreme Court on review can overturn the result only when the established facts do not support the result reached, or compel a different result as a matter of law. Schaffner v. Department of Employment Security, 140 Vt. 89, 436 A.2d 743 (1981).

That an employee's conduct constitutes misconduct which is grounds for being discharged from employment does not necessarily make the conduct misconduct for purposes of this section disqualifying one for unemployment compensation when one is discharged for misconduct connected with work; the employer's determination may be evidence, but is not per se controlling, and the Commissioner must make a separate determination in light of the remedial and beneficial purposes of this section, not on the basis of employer's policies. Porter v. Department of Employment Security, 139 Vt. 405, 430 A.2d 450 (1981).

Board decision, on conflicting evidence as to employee's alleged violations of safety rules, that employer failed its burden of proving that discharge was due to job-related misconduct, would not be overturned by supreme court where not clearly erroneous. Cooley v. Department of Employment Security, 138 Vt. 211, 414 A.2d 1154 (1980).

Court may overturn the finding of the Commissioner and Board that employee's actions do not amount to misconduct connected with his work, in absence of other defects, only when the established facts do not support the result reached, or compel a different result as a matter of law. In re Gray, 127 Vt. 303, 248 A.2d 693 (1968).

4. Findings.

Where claimant complained about her supervisor and the employer offered three alternative solutions to address the issue, claimant's decision to forego those options and leave her job permanently could not be attributed to her employer. Lynch v. Department of Employment and Training, 179 Vt. 542, 890 A.2d 93 (mem.) (October 6, 2005).

Findings of Employment Security Board will be affirmed if supported by any credible evidence in the record. Whitcomb v. Department of Employment & Training, 147 Vt. 525, 520 A.2d 602 (1986).

Where findings of fact by Employment Security Board did not support its conclusion that a claimant, during an employment interview, misinformed her employer about her previous qualifications, the Supreme Court was required to reverse the decision of the board disqualifying the claimant from unemployment compensation benefits. Genier v. Department of Employment Security, 140 Vt. 453, 438 A.2d 1116 (1981).

On appeal from disqualification from benefits on ground that claimant's misrepresentation of qualifications during an employment interview constituted substantial disregard of employer's business interests where evidence indicated information concerning the nature of previous employment given by claimant during interview was accurate, that employer did not inquire further as to her qualifications or check references, and that the employer subsequently felt that she misrepresented her work history at the time she was interviewed and became dissatisfied with her performance as a result, findings did not support conclusion of Employment Security Board that the claimant misrepresented the nature of her previous employment and conclusion was an error as a matter of law. Genier v. Department of Employment Security, 140 Vt. 453, 438 A.2d 1116 (1981).

Decision of Employment Security Board would not be reversed for failure of support for certain conclusions in the express findings where the ultimate findings on the issue at stake were supported by the record made by the board and justified the conclusions reached. Wheeler v. Department of Employment Security, 139 Vt. 69, 421 A.2d 1315 (1980).

Absence of a finding below on an issue unemployment compensation claimant denied benefits raised before appeals referee but not before Employment Security Board did not prevent supreme court from review of the issue. Darrel v. Department of Employment Security, 138 Vt. 549, 420 A.2d 864 (1980).

5. Basis of determination.

Where two carpenters accepted a job partitioning office space, reported for work and were told to renovate a partially gutted old building, decided the building was unsafe and quit that day, telling employer they had decided to take a better job, did not tell employer or unemployment compensation office the real reason why they had quit, and benefits were denied on basis that they had refused to accept suitable employment, their claim was determined on the wrong grounds and should have been determined on whether they left their employment voluntarily without good cause attributable to the employer; and where they had had no notice of such issue it would not be determined on appeal and remand for evidence on the issue was necessary. Call v. Department of Employment Security, 138 Vt. 52, 411 A.2d 1336 (1980).

6. Date of leaving employment.

Unemployment benefits claimant did not "leave the employ" of the employer on the date that she submitted her resignation letter, because she continued to work after that date. Rather, she left her employment on September 3, the date that the employer terminated her employment and escorted her off the premises. Kelley v. Dep't of Labor, 197 Vt. 155, 101 A.3d 895 (2014).

Cited. In re Moore, 128 Vt. 581, 269 A.2d 853 (1970); In re Wheelock, 130 Vt. 136, 287 A.2d 569 (1972); In re Prouty, 131 Vt. 504, 310 A.2d 12 (1973); Schneider v. Vermont Employment Security Board, 133 Vt. 187, 333 A.2d 104 (1975); Marsh v. Department of Employment Security, 133 Vt. 425, 340 A.2d 93 (1975); Ellis v. Department of Employment Security, 133 Vt. 533, 346 A.2d 221 (1975); St. James v. Department of Employment Security, 134 Vt. 266, 356 A.2d 526 (1976); Nolan v. Davidson, 134 Vt. 295, 357 A.2d 129 (1976); Wallace v. Department of Employment Security, 134 Vt. 513, 365 A.2d 517 (1976); Kaufman v. Department of Employment Security, 136 Vt. 72, 385 A.2d 1080 (1978); Hill v. Department of Employment Security, 141 Vt. 455, 449 A.2d 969 (1982); Webster v. Department of Employment & Training, 141 Vt. 591, 451 A.2d 1104 (1982); Hunt v. Department of Employment Security, 142 Vt. 90, 453 A.2d 391 (1982); Trombley v. Department of Employment & Training, 146 Vt. 332, 503 A.2d 537 (1985); Gorton v. Department of Employment & Training, 147 Vt. 262, 514 A.2d 1063 (1986); City of Burlington v. Department of Employment & Training, 148 Vt. 151, 530 A.2d 573 (1987); LeBarron v. Department of Employment & Training, 150 Vt. 193, 552 A.2d 396 (1988); Favreau v. Department of Employment & Training, 156 Vt. 572, 594 A.2d 440 (1991).

II. MISCONDUCT
10. Generally.

To be disqualified from benefits under subdivision (a)(1)(A) of this section, employee's misconduct must be in substantial disregard of employers' interest, his disregard being either willful or culpably negligent, and culpable negligence must involve more than mere mistakes, errors in judgment, unintentional carelessness or negligence. Favreau v. Department of Employment & Training, 151 Vt. 170, 557 A.2d 909 (1989).

The fact that misconduct may support a discharge does not necessarily mean that the same misconduct disqualifies an employee from receiving unemployment benefits. Cross v. Department of Employment & Training, 147 Vt. 634, 523 A.2d 1247 (1987).

In determining whether an employee's conduct constituted misconduct connected with his work, amounting to a substantial disregard of the employer's interest, either willful or culpably negligent, a separate evaluation in the light of the remedial and beneficial purposes of this chapter must be conducted. Cross v. Department of Employment & Training, 147 Vt. 634, 523 A.2d 1247 (1987).

For an employee's misconduct to disqualify him for unemployment compensation benefits there must be evidence of substantial willful or culpably negligent disregard of the employer's interest. Strong v. Department of Employment & Training, 144 Vt. 128, 473 A.2d 1170 (1984).

Misconduct that is sufficient for discharge is not necessarily sufficient to require disqualification for benefits under this section. Johnson v. Department of Employment Security, 138 Vt. 554, 420 A.2d 106 (1980); Schaffner v. Department of Employment Security, 140 Vt. 89, 436 A.2d 743 (1981).

The term "misconduct" in subdivision (a)(1) of this section means an act or course of conduct in violation of the employee's duties, which is tantamount to an intentional disregard of the employer's interests. Schaffner v. Department of Employment Security, 140 Vt. 89, 436 A.2d 743 (1981).

A key factor when determining whether a discharged employee should be disqualified from receiving unemployment benefits because of a discharge for misconduct is that the conduct be tantamount to an intentional disregard of the employer's interests. Schaffner v. Department of Employment Security, 140 Vt. 89, 436 A.2d 743 (1981).

Employee's work-related misconduct which will disqualify him from unemployment compensation involves substantial disregard of employer's interest, either willful or culpably negligent, an act or course of conduct violating his duties and tantamount to intentional disregard of employer's interest; mere mistakes, errors on judgment, unintentional carelessness, or negligence is not enough, though it may warrant discharge. Porter v. Department of Employment Security, 139 Vt. 405, 430 A.2d 450 (1981).

Misconduct on job from which unemployment compensation claimant is dismissed justifies denial of benefits for a certain period if misconduct involves substantial disregard of employer's interest, either willful or culpably negligent. In re Therrien, 132 Vt. 535, 325 A.2d 357 (1974).

It is for the Commissioner to find whether or not the actions leading to discharge mount to misconduct connected with employee's work. In re Gray, 127 Vt. 303, 248 A.2d 693 (1968).

Employer's determination that as to that employer, the conduct is considered misconduct, may be evidence relevant to the issue before the Commissioner, but is not per se controlling. In re Gray, 127 Vt. 303, 248 A.2d 693 (1968).

Substantial disregard of employer's interest, either willful or culpably negligent, is the kind of conduct that disqualifies discharged employee from unemployment benefits. In re Gray, 127 Vt. 303, 248 A.2d 693 (1968).

In determining whether employee's actions leading to discharge amount to misconduct connected with his work, Commissioner must conduct a separate valuation in the light of the remedial and beneficial purposes of this chapter, rather than on the basis of internal hiring procedures adopted by employer's. In re Gray, 127 Vt. 303, 248 A.2d 693 (1968).

11. Burden of proof .

Employer failed to carry its burden of proving that an employee was discharged from work for actions that constituted misconduct, such that a determination by the Vermont Employment Security Board that she was temporarily disqualified from collecting unemployment compensation benefits was an error. Allen-Pentkowski v. Dep't of Labor, 190 Vt. 556, 26 A.3d 55 (2011).

At hearing on disqualification for unemployment benefits due to misconduct connected with work, employer has burden of proof on issue of misconduct, and measure of proof is civil standard of preponderance of the evidence, not criminal standard of proof beyond reasonable doubt. Romeo v. Department of Employment & Training, 150 Vt. 591, 556 A.2d 93 (1988).

The burden of proving that particular misconduct disqualifies an employee from receiving benefits is squarely on the employer. Cross v. Department of Employment & Training, 147 Vt. 634, 523 A.2d 1247 (1987).

When misconduct is asserted as the basis for an employee's discharge and resultant disqualification for unemployment compensation benefits, the burden of proof is on the employer. Porter v. Department of Employment & Training, 144 Vt. 128, 473 A.2d 1170 (1984).

When misconduct of an employee is asserted as a basis for disqualification for unemployment compensation benefits, the burden of proof is on the employer. Porter v. Department of Employment Security, 139 Vt. 405, 430 A.2d 450 (1981).

Burden of proof rests squarely on employer to show work-related misconduct as a ground for denying unemployment compensation benefits to a dismissed employee and employer must show disregard of its interests, either willful or culpably negligent. Johnson v. Department of Employment Security, 138 Vt. 554, 420 A.2d 106 (1980).

An employer claiming employee was discharged for misconduct connected with his work and thus should be denied unemployment compensation benefits has burden of proof on the issue. Cooley v. Department of Employment Security, 138 Vt. 211, 414 A.2d 1154 (1980).

Burden of proof is on the employer where misconduct is asserted as a basis for disqualification for unemployment benefits. Longe v. Department of Employment Security, 135 Vt. 460, 380 A.2d 76 (1977).

Once unemployment compensation claimant meets burden of showing initial eligibility for benefits, employer claiming discharge for misconduct has burden of proving the misconduct. In re Therrien, 132 Vt. 535, 325 A.2d 357 (1974).

12. Unconnected with work.

Plain language of the new full disqualification provision of the Unemployment Compensation Act still requires that misconduct be connected with the employee's work, and nothing in its language suggests that the Legislature intended to overrule Chamberlin in circumstances not covered by the consequences-of-conviction partial disqualification. If anything, the 2010 amendment expanded the scope of Chamberlin . Mohamed v. Fletcher Allen Heath Care, 192 Vt. 204, 58 A.3d 222 (2012).

Question of whether a claimant who was dismissed for off-duty, off-premises, and work-unrelated criminal conduct should have been disqualified from unemployment compensation benefits was different from the question of whether his employer adopted an appropriate employment policy. Misconduct that is sufficient for discharge is not necessarily sufficient to require a disqualification from benefits under the Unemployment Compensation Act. Mohamed v. Fletcher Allen Heath Care, 192 Vt. 204, 58 A.3d 222 (2012).

Supreme Court would not read into this section a disqualified for misconduct unconnected with employment, so as to disqualify appellant, whose employment was terminated upon incarceration for an offense occurring prior to employment, particularly in light of legislature's 1974 amendment of statute to eliminate as a ground of disqualification an employee's conviction of a felony committed after the time of his last previous employment. Chamberlin v. Department of Employment Security, 136 Vt. 571, 396 A.2d 140 (1978).

Where employee was charged with driving while intoxicated after being hired as a driver but before beginning work, and was convicted and lost his license almost two years later, and employer forced him to sign resignation by threatening to withhold his vacation pay until he signed, employee did not leave his employer voluntarily without good cause attributable to his employer by voluntarily entering into conduct which resulted in losing his license and could not be denied unemployment compensation on that ground. Przekaza v. Department of Employment Security, 136 Vt. 355, 392 A.2d 421 (1978).

13. Negligent conduct.

Where conduct of employee, who had been involved in several accidents during the course of his employment, might have been negligent but could not be said to amount to conduct tantamount to intentional disregard of his employer's interests, the misconduct was not sufficient to bar his receipt of unemployment compensation benefits. Schaffner v. Department of Employment Security, 140 Vt. 89, 436 A.2d 743 (1981).

14. Gross misconduct.

Former employee who made a "valid claim" when he filed for unemployment compensation benefits continued to hold onto it, although temporary disqualification was then imposed, and upon his satisfaction of the temporary disqualification requirements he was eligible for benefits, such that the employer was automatically liable for reimbursement payments; the employer's obligation was governed by the law in force at the time of the initial claim. Windham County Sheriff's Dep't v. Dep't of Labor, 195 Vt. 1, 86 A.3d 410 (2013).

Because an unemployment benefits claimant's off-duty, off-premises, and work-unrelated criminal conduct was not connected with his work and was not directly related to his work performance, the gross misconduct provision of the Unemployment Compensation Act did not apply. Mohamed v. Fletcher Allen Heath Care, 192 Vt. 204, 58 A.3d 222 (2012).

Where claimant, a teacher, engaged in a verbal argument with his son, a student at the school, that escalated to physical violence, such behavior qualified as gross misconduct connected with his work. Bouchard v. Department of Emp. and Training, 174 Vt. 588, 816 A.2d 508 (mem.) (2002).

Department of Social Welfare employee with supervisory position, excellent knowledge of welfare regulations and supervision and training of people dealing with food stamps, who failed to give required notice of his wife's return to work after a pregnancy which was the reason for his obtaining food stamps, was, upon filing unemployment compensation claim following his discharge from employment, properly found to be disqualified from benefits until he had earned in excess of six times his weekly benefit on the ground that he was discharged from employment for gross misconduct connected with his work. Newton v. Department of Employment Security, 137 Vt. 604, 409 A.2d 594 (1979).

15. Absence from work.

Single isolated unexplained day's absence from employment by one with a previous excellent work record and to whom no warning concerning absenteeism or tardiness had been given did not constitute misconduct as contemplated by subdivision (a)(1)(A) of this section. Johnson v. Department of Employment & Training, 146 Vt. 418, 505 A.2d 670 (1985).

Where dismissed employee had been absent from work, for good cause, 10-12 days during the first half of the year and had notified employer each time, except once, when his sister forgot to call as requested, Employment Security Board finding of misconduct was erroneous as a matter of law. In re Therrien, 132 Vt. 535, 325 A.2d 357 (1974).

16. Tardiness.

Employee's being late to work on four occasions was not a substantial disregard of employer's interests which could be used as a ground for discharge for job-related misconduct, barring employee from unemployment compensation benefits, especially where company policy of issuing four or five warnings as to tardiness was not fully followed. Cooley v. Department of Employment Security, 138 Vt. 211, 414 A.2d 1154 (1980).

17. Violation of employer's policy.

Where nurse coming on duty in hospital discovered patient had not been given necessary medicine by prior nursing shift, there was no doctor on the floor, she decided to administer it as she was concerned about patient's health, she used a method of administration which was inconsistent with hospital policy, and, apparently to cover for the prior nursing shift, she made an inaccurate entry in the records, and doctors testified that her method of administration was safe and sound, it could not be found that the substantial disregard of her employer's interests, either willful or culpably negligent, which was necessary to disqualify her from unemployment compensation for work-related misconduct, existed. Porter v. Department of Employment Security, 139 Vt. 405, 430 A.2d 450 (1981).

Employment Security Board's grant of unemployment benefits to employee fired for exceeding speed limit set by company policy was not clearly erroneous and would not be reviewed where facts supported Board's conclusion that there was no showing of willful violation of the policy or any intentional careless disrespect of employer did not sustain its burden of proving that devices used to gauge employee's speed were accurate. Bourn v. Department of Employment Security, 134 Vt. 490, 365 A.2d 253 (1976).

18. Job performance.

Unemployment compensation applicant was not discharged by employer for work-related misconduct disqualifying him from the receipt of benefits where his foreman had set a ripsaw so that it would cut stock in certain dimensions, employee was receiving strips of wood after they were cut, employee told foreman, after a few pieces were cut, that the stock was too large, foreman ordered him to continue cutting, and employee was discharged at the end of the day for cutting a quantity of the stock too large. Wheeler v. Department of Employment Security, 139 Vt. 69, 421 A.2d 1315 (1980).

Where dismissed employee had occasionally mishandled materials, refused to perform certain tasks and argued with his foreman and the owner, but employer failed to show such actions resulted from anything other than a misunderstanding of the job requirements and an honest concern for the safety of the motor vehicles employee was required to operate, employee could not be denied unemployment compensation benefits for work-related misconduct. Johnson v. Department of Employment Security, 138 Vt. 554, 420 A.2d 106 (1980).

19. Job requirements.

Where assistant manager of a filling station was required by his employer to take the test for motor vehicle inspector's license, even though he had twice failed the test, and he refused to take the test because he believed he was not qualified to be an inspector and did not want the responsibility or liability for certifying motor vehicles safe, and he was fired, he could not be disqualified from unemployment compensation benefits for leaving his employment voluntarily without good cause attributable to the employing unit and there was no misconduct on his part, as there was no willful disregard for employer's interest. Kuhn v. Department of Employment Security, 134 Vt. 292, 357 A.2d 534 (1976).

20. Misrepresentation of qualifications.

Where there was no indication that claimant for unemployment compensation benefits was asked by her employer to list all her previous employers, the omission of one employer was no more a misrepresentation, evidencing a substantial disregard of the employer's business interests and, therefore, disqualifying her from benefits, than the omission of any other incident of her life which was not related to the employer. Genier v. Department of Employment Security, 140 Vt. 453, 438 A.2d 1116 (1981).

On appeal from decision of Employment Security Board disqualifying claimant from unemployment compensation benefits on ground that her alleged misrepresentation of her qualifications during an employment interview constituted substantial disregard of her employer's interests, even though record indicated that employer relied on statements of claimant concerning her work history and suggested that she might not have been hired if she had provided more information than she did, since such a history included part-time rather than full-time experience and termination for cause from a prior job, there was no support in the findings of the Board or the record for transmuting the claimant's failure to fully apprise the employer about the two items into misrepresentation evidencing a substantial disregard of the employer's business interests. Genier v. Department of Employment Security, 140 Vt. 453, 438 A.2d 1116 (1981).

21. Profane language.

Where employee used profane language to the point that some of his co-workers would leave the area where he was working, returning after he had finished swearing, employee's manual furnished to all employees stated that profanity would not be tolerated, and employee continued to use foul language after a direct warning from his employer that further use of such language would not be tolerated, this repeated insubordination constituted misconduct sufficiently inimical to the employer's interest in the orderly operation of his enterprise to justify disqualification for unemployment benefits. Cross v. Department of Employment & Training, 147 Vt. 634, 523 A.2d 1247 (1987).

22. Hours of work.

Employee discharged simply because he sought a guarantee that no overtime would be required of him the following week could not be denied unemployment compensation benefits on the ground of misconduct connected with his work. Albin v. Department of Employment Security, 134 Vt. 120, 352 A.2d 678 (1976).

23. Laid off employees.

Employee could not be denied unemployment compensation benefits on basis of a discharge for misconduct connected with his work where he was laid off and during the course of telephone conversation during which he attempted to change employer's mind he said intemperate things which caused employer to discharge him. Seyfried v. Department of Employment Security, 136 Vt. 357, 392 A.2d 401 (1978).

24. Medical history.

Evidence of conflict in the medical history of employee, without motivation to misrepresent or intent to conceal or falsify, was sufficient to sustain commissioner's finding that such conduct was not misconduct of the measure intended by the Legislature to disqualify for benefits. In re Gray, 127 Vt. 303, 248 A.2d 693 (1968).

25. Intent.

There is no requirement that behavior disqualifying employee from benefits under subdivision (a)(1)(A) of this section be intentional. Favreau v. Department of Employment & Training, 151 Vt. 170, 557 A.2d 909 (1989).

26. Evidence.

Employee's anger and profanity on one occasion, plus alleged pattern of insubordination which was supported only by hearsay statements, did not prove misconduct within meaning of subdivision (a)(1)(A) of this section. Mazut v. Department of Employment & Training, 151 Vt. 539, 561 A.2d 1362 (1989).

27. Insubordination.

One may be disqualified from unemployment compensation benefits under subdivision (a)(1)(A) of this section for repeated insubordination after receiving direct warning from employer. Favreau v. Department of Employment & Training, 151 Vt. 170, 557 A.2d 909 (1989).

28. Temper tantrums.

Claimant acted with culpable negligence in substantial disregard of his employer's interests and was disqualified from unemployment benefits under subdivision (a)(1)(A) of this section when he screamed, fell to floor and held Bible against his head in response to co-worker's playing of loud rock music, did not seek out a supervisor to request help, frightened his co-workers by his actions, and had previously been warned against another "temper tantrum." Favreau v. Department of Employment & Training, 151 Vt. 170, 557 A.2d 909 (1989).

III. VOLUNTARY TERMINATION WITHOUT GOOD CAUSE
40. Generally.

To receive unemployment benefits after voluntarily quitting a job, an employee must show sufficient reason to justify quitting, that reason also being attributable to the employing unit. Allen v. Department of Employment & Training, 159 Vt. 286, 618 A.2d 1317 (1992).

A voluntary termination is grounds for disqualification from unemployment compensation benefits only if it is without good cause attributable to the employer. Skudlarek v. Department of Employment & Training, 160 Vt. 277, 627 A.2d 340 (1993).

In determining good cause for voluntarily terminating employment, each case is examined according to a standard of reasonableness. Skudlarek v. Department of Employment & Training, 160 Vt. 277, 627 A.2d 340 (1993).

Whether a resignation is for good cause attributable to the employer is a matter within the special expertise of the Employment Security Board, and its decision is entitled to great weight on appeal. Cook v. Department of Employment & Training, 143 Vt. 497, 468 A.2d 569 (1983); Miner v. Department of Employment & Training, 144 Vt. 211, 475 A.2d 233 (1984); Garcia v. Department of Employment & Training, 145 Vt. 331, 488 A.2d 762 (1985).

Subdivision (a)(2)(A) of this section, which prohibits payment of unemployment benefits to employees who voluntarily quit jobs without good cause attributable to their employers, clearly recognizes that there exist occasions when the employer's conduct does provide good cause to quit. Burke v. Department of Employment Security, 141 Vt. 582, 450 A.2d 1156 (1982).

Under subdivision (a)(2)(A) of this section, good cause attributable to an employer is an amorphous phrase requiring analysis as it pertains to each individual situation. Turco v. Department of Employment Security, 141 Vt. 135, 446 A.2d 345 (1982).

A voluntary quit is without good cause if it is conditioned in a manner not within the options open to the employee. Healey v. Department of Employment Security, 140 Vt. 79, 436 A.2d 753 (1981).

A voluntary quit by an employee is without good cause if it is conditioned in a manner not within the options open to the employee; to hold otherwise would be to allow the employee to unilaterally write a new contract of employment. MacDonald v. Department of Employment Security, 136 Vt. 184, 385 A.2d 1117 (1978).

41. Burden of proof.

A claimant seeking unemployment compensation after voluntarily terminating employment bears the burden of proving good cause. Skudlarek v. Department of Employment & Training, 160 Vt. 277, 627 A.2d 340 (1993).

Claimant for unemployment benefits who argues that he quit his job for good cause attributable to the employer has burden of proving his claim. Rushlow v. Department of Employment & Training, 144 Vt. 328, 476 A.2d 139 (1984).

Where claimant for unemployment compensation benefits maintained that she terminated her employment with good cause because her employer failed to provide her transportation to and from work, burden of proving that the employment contract included an agreement to provide transportation was on claimant. Stryszko v. Department of Employment & Training, 144 Vt. 198, 475 A.2d 230 (1984).

42. Last employing unit.

In case where plaintiff unsuccessfully sought unemployment benefits from an employer who laid her off prior to her first day of work and upon whose job offer plaintiff has relied in voluntarily resigning from other employment, Vermont Employment Security Board's ruling that plaintiff was a person without a qualifying "last employment unit" and thus not entitled to unemployment compensation was clearly erroneous; plaintiff's last employer was the corporation which had laid her off. Howard v. Department of Employment & Training, 153 Vt. 614, 572 A.2d 931 (1990).

The phrase "last employing unit" in subdivision (a)(2)(A) of this section simply means "last in time," and should not be construed in relation to section 1325 of this title, which deals only with allocating the costs of the unemployment insurance program. Habel v. Department of Employment & Training, 146 Vt. 566, 507 A.2d 973 (1986).

43. Waiver of good cause.

When an employee, either expressly or impliedly, consents to the occurrence of an event that could provide the basis for good cause to resign, then it would be clearly contrary to the purposes of subdivision (a)(2)(A) of this section to allow at a later date the payment of benefits on the basis of that earlier event. Cook v. Department of Employment & Training, 143 Vt. 497, 468 A.2d 569 (1983).

Where the failure of claimant's employer to provide an agreed-upon monthly bonus when due stemmed from an innocent mistake rather than from a deliberate or bad faith act, the employer acknowledged his mistake and assured claimant that he would receive two bonuses the next month and claimant did receive a bonus for the next month, which indicated that it was the first of two for that month, since claimant resigned before the end of that month, and his letter of resignation did not complain of the untimeliness of the bonus, the circumstances suggested that claimant had accepted the untimeliness of the bonus; therefore, the Employment Security Board did not err in disqualifying claimant from unemployment compensation benefits, pursuant to subdivision (a)(2)(A) of this section, on the ground that he left his employing unit voluntarily without good cause attributable to the employing unit. Cook v. Department of Employment & Training, 143 Vt. 497, 468 A.2d 569 (1983).

Supreme Court would not hold pro se unemployment compensation claimant who voluntarily quit her job and was denied benefits for quitting without good cause attributable to employer to have waived issue of verbal abuse by supervisor where issue was raised by testimony before appeals referee but not later argued to the Employment Security Board. Darrel v. Department of Employment Security, 138 Vt. 549, 420 A.2d 864 (1980).

Where unemployment compensation claimant denied benefits on ground of voluntary quit without good cause attributable to employer resigned on August 4 and supervisor whose alleged verbal abuse was a claimed reason for resigning had quit on July 1, any casual connection between the alleged abuse and the resignation of claimant was too remote to constitute good cause attributable to employer. Darrel v. Department of Employment Security, 138 Vt. 549, 420 A.2d 864 (1980).

44. Anticipatory reasons.

Claimant for unemployment insurance benefits did not quit because of the mere future possibility of a breach. The breach, giving rise to good cause to quit, occurred when the employer's president informed her that she would not be paid because the payroll checks would bounce; to conclude otherwise would be offensive to common sense and out of line with the remedial purposes of the unemployment compensation scheme. St. Martin v. Dep't of Labor, 191 Vt. 577, 38 A.3d 67 (mem.) (2012).

Quitting a job for anticipatory reasons is not good cause attributable to the employer. Rushlow v. Department of Employment & Training, 144 Vt. 328, 476 A.2d 139 (1984).

A resignation over something that is only a future possibility and has not actually yet occurred does not justify an award of unemployment compensation benefits. Cook v. Department of Employment & Training, 143 Vt. 497, 468 A.2d 569 (1983).

Where claimant for unemployment compensation benefits argued that he had resigned from his employing unit because of apprehension over his first semi-annual bonus, to which he was entitled under the terms of his employment contract, finding of the Employment Security Board, pursuant to subdivision (a)(2)(A) of this section that this was not good cause to resign attributable to the employer, would not be disturbed on appeal, since even though claimant may have had reason to feel that the bonus was threatened, he had no knowledge in fact as to the status of the bonus when he resigned well before its due date. Cook v. Department of Employment & Training, 143 Vt. 497, 468 A.2d 569 (1983).

Where seasonal employee agreed to work longer hours during high volume periods than he had worked the previous season, and on New Year's Day he told his employer he needed seven hours sleep between shifts and was told he could not be guaranteed that over Washington's Birthday, and he requested his pay check immediately and said he was leaving, there was no breach of hiring agreement, his concern over future hours was speculative and unjustified, his concern over his health was unreasonable, he chose to quit for speculative personal reasons, and he was properly disqualified from unemployment compensational benefits. Kasnowski v. Department of Employment Security, 137 Vt. 380, 406 A.2d 388 (1979).

45. Breach of employment agreement.

An employer's failure to provide agreed upon consideration, when due, constitutes good cause to quit. Cook v. Department of Employment & Training, 143 Vt. 497, 468 A.2d 569 (1983).

Decision of Employment Security Board awarding unemployment compensation benefits to claimant was supported by substantial evidence and was without error where the board found that the claimant resigned because of lack of training which had been promised him when he was first hired and had given notice for that reason that, although the claimant's dissatisfaction with safety at the work place was not itself good reason to quit under subdivision (a)(2)(A) of this section, that fact did not purge the independent basis of lack of training as reason to quit, and that the employer's contention that it was not given adequate opportunity to implement the promised training was rebutted by its failure to provide such training for approximately one and one-half years despite its contrary promise. Allen v. Department of Employment Security, 141 Vt. 132, 444 A.2d 892 (mem.) (1982).

Where claimant for unemployment benefits discovered on January 7, 1981, that his employer had breached its promise to provide medical insurance for its employees by having allowed their insurance coverage to lapse during the last three months of 1980, and where claimant quit, on the same day, after being told by the employer that the coverage had been reinstated effective that day, the Employment Security Board erred in denying claimant unemployment benefits since the employer's breach of its promise to provide medical coverage and its deliberate concealment of that breach for over three months placed its reliability in question and since, on the date claimant left employment, insurance coverage was not in fact reinstated, contrary to the employer's assertions otherwise, the employer's breach of its contractual obligation to provide medical coverage provided good cause under subdivision (a)(2)(A) of this section, attributable to the employer, for the claimant to quit. Burke v. Department of Employment Security, 141 Vt. 582, 450 A.2d 1156 (1982).

46. Change in working conditions.

An employer's unilateral decision to increase a part-time worker's hours to full time is normally good cause for the employee to leave. Skudlarek v. Department of Employment & Training, 160 Vt. 277, 627 A.2d 340 (1993).

Part-time employee's unsuccessful attempt to accept offer of full-time employment did not negate determination of good cause in voluntarily terminating employment where employer unilaterally required full time work in order to retain job. Skudlarek v. Department of Employment & Training, 160 Vt. 277, 627 A.2d 340 (1993).

Employment Security Board did not err in granting unemployment compensation benefits based on a finding that the claimant demonstrated good cause for leaving her employment where the claimant's working conditions had changed dramatically after an unsuccessful attempt to fire her - changed which included assignment to new duties which were not entirely suited to her physical stature and assignment to split shifts in direct violation of her union contract - and where the claimant received information from several co-workers that her manager was making derogatory remarks about her and her family in public. Harrington v. Department of Employment Security, 142 Vt. 340, 455 A.2d 333 (1982).

47. Lack of transportation.

Where claimant for unemployment compensation benefits maintained that she was forced to quit her employment because her employer breached her employment contract by failing to provide transportation to and from work, since evidence that claimant agreed to pay a fellow employee for that service implied that she had assumed the responsibility for transportation herself, and since there was no evidence that the employer or its agent promised to provide transportation as a condition of employment, the employer's failure to provide transportation did not constitute good cause to quit. Stryszko v. Department of Employment & Training, 144 Vt. 198, 475 A.2d 230 (1984).

Termination of employment by employee who had two inoperable autos, had been riding to work and back with a co-employee, and lost such ride, may have been involuntary, but it was not for good cause attributable to employer where there was no showing employer had undertaken to provide employee with transportation, and employee was properly denied benefits for a voluntary quit without good cause attributable to employer. Esty v. Department of Employment Security, 138 Vt. 552, 420 A.2d 114 (1980).

Where employer breached its agreement to provide employee with transportation to work sites, employee used his own auto and did not object to employer's refusal to transport during the four week period of his employment, and employee then gave a week's notice and quit, he did not waive the breach and could not on ground of waiver be denied unemployment compensation for leaving employment voluntarily without good cause attributable to employer. Seymour v. Department of Employment Security, 137 Vt. 79, 399 A.2d 519 (1979).

Where plaintiff terminated her employment in a dress manufacturing company 10 miles from her home because she could no longer afford to keep her automobile operating and public transportation was unavailable, Employment Security Board's conclusion that plaintiff left her employment voluntarily without good cause was proper. In re Barcomb, 132 Vt. 225, 315 A.2d 476 (1974).

48. Dissatisfaction with working conditions or wages.

Employment Security Board properly found that a claimant left her job voluntarily without good cause attributable to her employer. It found that the proximate cause of her decision to quit was not a unilateral cut in pay eight weeks previously, but an exchange of text messages regarding the employer's insistence that the claimant attend training without pay; moreover, the record supported the ruling that it was unreasonable for the claimant to refuse to meet with the employer about the unpaid training unless a third party was present. Demar v. Dep't of Labor, 188 Vt. 577, 6 A.3d 695 (mem.) (2010).

In unemployment compensation proceeding, employee's claims of cramped and noisy working conditions and low salary did not constitute good cause for voluntarily quitting where cramped quarters were necessary for easy and centralized access to records used by a number of employee's, employee was a nonprofessional and her salary was commensurate with other nonprofessional salaries, and she had just received a raise. Darrel v. Department of Employment Security, 138 Vt. 549, 420 A.2d 864 (1980).

Where employee told his employer that he had been offered work with another firm for higher wages and employer had two weeks to decide to match the wage increase, and at the conclusion of two weeks the employer told the employee the offer could not be matched and that he should pick up his tools and go home, finding that employee was disqualified for benefits during three week period between his leaving first job and date on which new job commenced would stand since he left his employment voluntarily without good cause attributable to employer. Frost v. Department of Employment Security, 135 Vt. 39, 370 A.2d 203 (1977).

49. Failure to pay wages.

It was an error to find that an unemployment insurance claimant who quit her job after being told by the employer's president that the payroll checks she had prepared would bounce had quit without good cause. The claimant's specialized knowledge about her employer's grim financial situation and the statement from the president of the company about not receiving a paycheck lent strong support to the reasonableness of her belief that she would not be paid; furthermore, although the checks did clear, this fact did not render the claimant's belief at the time of the quit unreasonable. St. Martin v. Dep't of Labor, 191 Vt. 577, 38 A.3d 67 (mem.) (2012).

Employer's failure to pay employee's wages when due, coupled with three or four prior late payments, constituted good cause for employee to leave her employment and was attributable to employer, and thus not within this section's disqualification for leaving employment without good cause attributable to employer. Zablow v. Department of Employment Security, 137 Vt. 8, 398 A.2d 305 (1979).

50. Hours of work.

Where working hours of employee, who had regularly performed substantial overtime work during the course of employment over a period of six years, were unilaterally reduced by his employer, resulting in a reduction of the wages earned by the employee of 40 percent, employee's action in voluntarily terminating employment was not without good cause. LaRose v. Department of Employment Security, 139 Vt. 513, 431 A.2d 1240 (1981).

Claimant for unemployment compensation benefits who was employed as a part-time lab technician and operator at town waste-water treatment facility, and who requested a full-time position, which municipality refused on budgetary grounds, while offering continuing part-time employment in same job classification, with increase in hourly wage, was not discriminated against on the basis of sex in denial of request for full-time position and did not have good cause, directly attributable to her employer, to quit her job; town could not be required to furnish employee with full-time position merely because she could demonstrate that she had qualifications exceeding those required for her part-time job or superior to those of a full-time male employee in a similar position. Healey v. Department of Employment Security, 140 Vt. 79, 436 A.2d 753 (1981).

51. Personal reasons.

Unemployment compensation claimant was properly disqualified from benefits for leaving his employment voluntarily without good cause attributable to his employer where he was an experienced salesman employed on commission basis on sales accepted by employer as good credit risks and quit because he could not make expenses. Dunton v. Department of Employment Security, 136 Vt. 483, 394 A.2d 1129 (1978).

52. Conduct of co-workers.

Employment Security Board's decision that claimant was qualified for unemployment benefits based on a finding, pursuant to subdivision (a)(2)(A) of this section, that good cause for claimant's leaving his job was attributable to the employer was upheld where claimant, employed for a period of 14 months with the employer, suffered some degree of harassment from his fellow employees, primarily because of his religious beliefs, and, although aware of the problem, the employer took no action to alleviate it; in the circumstances presented, a reasonable person would be expected to act as a claimant did in leaving his employment, and the Board did not err in concluding that the leaving was with good cause attributable to the employing unit. Turco v. Department of Employment Security, 141 Vt. 135, 446 A.2d 345 (1982).

53. Cause attributable to employee.

Claimant was properly found ineligible for unemployment benefits because he had voluntarily left without good cause attributable to the employer. A supervisor's anger was not directed at him personally, and the claimant had denied the employer the opportunity to address any particularized complaint; even if the Employment Security Board could have found sufficient cause to quit, its determination to the contrary was supported by some evidence, such as the claimant's return to work despite what the Board determined to be the supervisor's generalized and overblown threat to shoot 100 people. Bombard v. Dep't of Labor, 189 Vt. 528, 12 A.3d 533 (2010).

Court rejected the argument of a claimant for unemployment benefits that the employer's violations of the workers' compensation reporting requirement and its arguable violation of the prohibition against employer-mandated polygraphs provided per se good cause for the claimant to quit her job. The referee and the Employment Security Board found that the claimant prematurely quit because she was offended by the employer's suggestion that she was lying about the circumstances surrounding her back injury, not because she felt threatened that she would be fired if she refused to take a polygraph test; furthermore, there was no evidence that the claimant faced having to forego her workers' compensation claim. Quick v. Dep't of Labor, 187 Vt. 585, 992 A.2d 1028 (mem.) (2009).

Where claimant for unemployment benefits had chosen to resign from his high school teaching position in order to avoid the entry of a dismissal for a morals charge on his personnel record, the claimant having been earlier convicted of possession of marijuana and suspended from his position, the decision of the Employment Security Board denying the claimant benefits under subdivision (a)(2)(A) of this section because he had voluntarily left his employer without good cause attributable to that employer was upheld since the claimant resigned because of the conviction which was solely attributable to his own conduct. Vennell v. Department of Employment Security, 141 Vt. 282, 449 A.2d 899 (1982).

Time lapse between employee's early April dismissal from education program which was a fringe benefit and resignation from employment on August 4 raised question of whether there was a causal connection between the two for purposes of claim employee was not ineligible for benefits for a voluntary resignation without good cause attributable to employer, but where there was a possibility of reinstatement to the program the time lapse was not fatal to claim dismissal was a ground for a good cause resignation; however, where dismissal was for a voluntary failure to attend classes, it did not constitute good cause for resignation attributable to employer. Darrel v. Department of Employment Security, 138 Vt. 549, 420 A.2d 864 (1980).

Where waitress advised employer that she was giving two weeks' notice of intention to leave employment and employer told her no notice was required or customary in the trade and that if she was going to leave her employment it would be terminated forthwith, and she immediately left, Employment Security Board properly found she left voluntarily without good cause attributable to employer, waitress having given notice after altercation with another employee and having been told by employer that she could stay. MacDonald v. Department of Employment Security, 136 Vt. 184, 385 A.2d 1117 (1978).

Where master contract required teacher to return within 30 days a teaching contract signed by the Board of School Directors and sent to teacher, and teacher returned the contract on the 13th day without his signature and with a request for additional credit for his experience, and Board voted to deny the request and notified teacher of its action and declared his position open, teacher voluntarily left his position without good cause attributable to employer and was disqualified from unemployment compensation. Haberman v. Department of Employment Security, 136 Vt. 573, 396 A.2d 141 (1978).

Unemployment compensation claimant's resignation from employment was voluntary and without good cause attributable to his employer where he had a personality conflict with his supervisor, the employment relationship was an unhappy one, with occasional criticism of his performance and dissatisfaction of his part occasioned by failure to receive an increase granted fellow employees, he had had a typed resignation ready to submit during the three months prior to resignation, he was absent for untreated illness, did not call in and gave an insolent answer to supervisor's question as to where he had been, the supervisor arranged a discussion with his superior and after discussion advised claimant that he should resign or further action would be taken, and claimant then resigned. Lane v. Department of Employment Security, 134 Vt. 9, 347 A.2d 454 (1975).

54. Cause unrelated to employment.

A dispute arising between employer and employee over a matter totally unrelated to the employment relationship, and which antedated that relationship, does not give rise to good cause, attributable to the employing unit, for the employee to voluntarily quit and collect benefits. Spaulding v. Department of Employment Security, 139 Vt. 562, 433 A.2d 269 (1981).

55. Mutual agreement.

Where employee and Commissioner of Department of Labor and Industry met and mutually concluded that it would be best for all parties if employee's employment ended, Commissioner had previously been advised by Department of Personnel that he had insufficient grounds to discharge employee, with whose work Commissioner was dissatisfied, and employee submitted a written resignation in which he confirmed that he was quitting by mutual agreement, evidence did not support conclusion of Employment Security Board that the termination was not voluntary and was coerced by employer, and supreme court would conclude that employee voluntarily quit without good cause attributable to employer and was thus disqualified from unemployment compensation benefits. Hamilton v. Department of Employment Security, 139 Vt. 326, 428 A.2d 1108 (1981).

56. Temporary employment.

An employee who accepts a temporary position leaves that position voluntarily within meaning of this section at the end of the agreed period if it is shown that the employee requested temporary employment in light of his or her needs or availability. Lincoln v. Department of Employment & Training, 156 Vt. 316, 592 A.2d 885 (1991).

Where an employee accepts a temporary position and the only evidence as to why the position is temporary is an agreement for a limited term of employment, with no evidence as to why the employee entered into an agreement for temporary employment, rule in Adams v. Department of Employment Security , 139 Vt. 413, 430 A.2d 446 (1981), compels the conclusion that the claimant has not left the employment voluntarily for purposes of unemployment compensation. Lincoln v. Department of Employment & Training, 156 Vt. 316, 592 A.2d 885 (1991).

Where holding in Adams v. Department of Employment Security , 139 Vt. 413, 430 A.2d 446 (1981), was modified, making issue of whether it was the employer or employee who insisted upon the limited employment relevant, case was remanded to Employment Security Board, to allow employer to present additional evidence on whether the limitation on the length of the employment was requested by employee due to his unwillingness or unavailability to serve longer. Lincoln v. Department of Employment & Training, 156 Vt. 316, 592 A.2d 885 (1991).

Where claimant for unemployment benefits worked as a temporary or casual employee for the postal service for two 90-day appointments, and, at the time he was terminated on December 23, 1980, was offered and refused a third casual appointment to begin sometime in January, 1981, the Employment Security Board erred in denying the claimant benefits on the basis that he left his last employment voluntarily without good cause attributable to the employer, since the claimant's job ended through no fault of his own and his decision against returning had no relation or relevancy to the reason in fact for the end of employment; therefore, claimant's entitlement was to be determined under subdivision (a)(2) of this section which denies benefits to one who fails without good cause shown to accept suitable work when offered him. Losordo v. Department of Employment Security, 141 Vt. 391, 449 A.2d 941 (1982).

Employee who agreed to a job which would last only four to six weeks did not voluntarily leave the job at the end of that term so as to be disqualified for unemployment compensation. Anthony Adams AIA Architect v. Department of Employment Security, 139 Vt. 413, 430 A.2d 446 (1981).

57. Labor dispute.

Before the voluntary leaving disqualification of subdivision (a)(2)(A) of this section comes into play, it must first be established that the claimant "left the employ of his last employing unit," and "left the employ" refers to a severance of the employment relationship and not to a temporary interruption in the performance of services; therefore, the voluntary leaving disqualification is not applicable to strikers since a complete and bona fide severance of the employer-employee relationship does not occur in a labor dispute case, for participation in a strike merely suspends that relationship and does not terminate it. Trapeni v. Department of Employment Security, 142 Vt. 317, 455 A.2d 329 (1982).

The Legislature did not intend the voluntary leaving disqualification and the labor dispute disqualification in subsection (a) of this section to be duplicative; it intended that a person who left work because of a labor dispute be treated differently than one who left for other reasons and without good cause attributable to the employer. Trapeni v. Department of Employment Security, 142 Vt. 317, 455 A.2d 329 (1982).

The Employment Security Board properly ruled that voluntary leaving disqualification did not disqualify claimants for benefits engaged in a labor dispute with their employer since the term "left the employ" in subdivision (a)(2)(A) of this section refers to a severance of the employment relationship and a complete and bona fide severance of the employment relationship does not occur in a labor dispute case. Trapeni v. Department of Employment Security, 142 Vt. 317, 455 A.2d 329 (1982).

58. Failure to follow union grievance procedures.

Failure to follow union contract grievance procedures in seeking redress, while relevant to the validity of a claim for unemployment compensation benefits, does not necessarily disqualify a claimant from benefits under subdivision (a)(2)(A) of this section. Garcia v. Department of Employment & Training, 145 Vt. 331, 488 A.2d 762 (1985).

Where good cause to quit employment exists and a union may be at fault for not following established grievance procedures, a claimant for unemployment compensation benefits should not be relegated by force of subdivision (a)(2)(A) of this section to the more uncertain remedy of a civil suit against the union for damages. Garcia v. Department of Employment & Training, 145 Vt. 331, 488 A.2d 762 (1985).

59. Failure to discuss problem.

Where claimant for unemployment benefits had failed to attend a meeting with his employer to discuss their differences over working hours and conditions, finding of Employment Security Board that employer had unilaterally sent claimant home several times, while indicating some likelihood that employer intended to reduce claimant's working hours, was insufficient to indicate that a meeting between the parties would have been to no avail and was not sufficient to constitute good cause to quit. Rushlow v. Department of Employment & Training, 144 Vt. 328, 476 A.2d 139 (1984).

60. Involuntary termination.

Unemployment benefits claimant was fired rather than quit voluntarily, as the employer had agreed that she could work until September 19 before the employer received a client complaint on September 3 and decided to end her employment immediately and escort her off the premises. Kelley v. Dep't of Labor, 197 Vt. 155, 101 A.3d 895 (2014).

Fact that employee was discharged because she could not work hours at one time requested by employer did not evidence intent to quit on part of employee, but demonstrated clearly that employer's intent was to fire employee. Gale v. Department of Employment Security, 136 Vt. 75, 385 A.2d 1073 (1978).

Where employee of 30 years, who made oil deliveries and service calls, took great pride in the vehicle assigned to his use and had several times objected to his employer about the disarray of parts and tools when others were allowed to use it, and during one such objection employee said he would rather quit before he would run the vehicle in that condition and employer said "Okay you can pick up your two weeks' severance pay," employee was fired and did not quit and could not be disqualified from unemployment compensation benefits on the ground of voluntary termination of his job. Ladeau v. Department of Employment Security, 134 Vt. 387, 359 A.2d 648 (1976).

Licensed aircraft mechanic who quit his job because, as an economy measure, the heat was turned off in February in the hangar in which he worked and employer refused to turn it back on, and who turned down offer to work in a heated area at a lower salary doing alternative work, did not voluntarily quit his job and was not disqualified from unemployment compensation benefits. Surowick v. Department of Employment Security, 133 Vt. 578, 349 A.2d 905 (1975).

IV. AVAILABLE AND SUITABLE WORK
70. Generally.

Suitable work, within the requirements of subdivision (a)(2)(C) of this section and section 1343(a)(3) of this title, that one must be available for and able to work to receive benefits, is that which an employee is capable of performing and is reasonably related to his qualifications. Gutches v. Department of Employment Security, 141 Vt. 587, 450 A.2d 1146 (1982).

Statutory definition of suitable work does not become different because the job offer comes from a former employer. A particular job does not necessarily become suitable because the claimant was in the position to accept comparable conditions and restrictions in the past. Piper v. Dep't of Labor, 189 Vt. 417, 22 A.3d 438 (2011).

In determining suitability of available jobs, the Employment Security Board must see that the job is reasonably related to claimant's qualifications, and courts generally have recognized claimant's right to reject, without loss of benefits, a job which involves far less skill than he possesses. In re Potvin, 132 Vt. 14, 313 A.2d 25 (1973).

To force workers into jobs at the lowest levels of skill and compensation would contravene general purposes of this chapter in development and preservation of workers skills, and violate its express provision that a claimant is barred from unemployment compensation only if he refuses "suitable" work. In re Potvin, 132 Vt. 14, 313 A.2d 25 (1973).

71. Burden of proof.

Burden rests with claimant to show that refusal to accept work was for good cause. Shufelt v. Department of Employment & Training, 148 Vt. 163, 531 A.2d 894 (1987).

Burden of establishing reasonableness of refusal to accept suitable work when offered rests upon claimant. Shufelt v. Department of Employment & Training, 148 Vt. 163, 531 A.2d 894 (1987).

In view of the beneficial and remedial purposes of this chapter, before one can be disqualified from receipt of benefits for refusing an offer of suitable work it must be clearly established that he refused suitable work. Martin v. Department of Employment Security, 138 Vt. 475, 417 A.2d 932 (1980).

One disqualified for unemployment compensation on ground he refused an offer of suitable work has burden of proving the work was not suitable. Martin v. Department of Employment Security, 138 Vt. 475, 417 A.2d 932 (1980).

Burden was on claimant for unemployment compensation benefits to show that she refused a job for good cause. Lanctot v. Department of Employment Security, 134 Vt. 281, 356 A.2d 531 (1976).

72. Good cause for failure to apply for or accept work.

Where the Legislature meant "good cause" to be attributable to the employer in subdivision (a)(2)(A) of this section, it plainly said so; where it did not say so in subdivision (a)(2)(C), it intended no such restriction; overruling Nurmi v. Vermont Employment Security Board (1963) 124 Vt. 42, 197 A.2d 483 to the extent of conflict. Shufelt v. Department of Employment & Training, 148 Vt. 163, 531 A.2d 894 (1987).

In determining whether good cause exists for refusal to accept suitable work when offered, each case must be decided on its own facts, and the criterion to be followed in making such decision is one of reasonableness, that is, what a reasonable person would be expected to do in the same circumstances. Shufelt v. Department of Employment & Training, 148 Vt. 163, 531 A.2d 894 (1987).

For purposes of determining disqualification for unemployment compensation, reasonableness, or what a reasonable person would be expected to do in the same circumstances, is the criterion for "good cause" in refusing a work referral or offer of employment; hours of work may be as significant a factor as distance of travel, and pay scale is also significant. Palucci v. Department of Employment Security, 135 Vt. 156, 376 A.2d 14 (1977).

Claimant could not be disqualified under subdivision (a)(2)(C) of this section for refusing a referral when position was filled at time of claimant's refusal. Dubuque v. Department of Employment Security, 135 Vt. 458, 380 A.2d 79 (1977).

Where unemployment compensation claimant was asked job which would involve a change from semi-skilled to unskilled level and result in a 40% reduction in her wages, claimant's refusal was justified and for good cause. In re Potvin, 132 Vt. 14, 313 A.2d 25 (1973).

The meaning of the words "good cause," as used in the provision of this section, disqualifying individuals from claiming benefits where they fail to apply for or accept work or employment without good cause, must be determined in each case from the facts of that case. Nurmi v. Vermont Employment Security Board, 124 Vt. 42, 197 A.2d 483 (1963), overruled on other grounds, Shufelt v. Department of Employment & Training (1987) 148 Vt. 163, 531 A.2d 894.

To be entitled to unemployment compensation, unemployed persons declining work must do so for good cause connected with the work itself rather than on account of personal inconvenience or home problems. Nurmi v. Vermont Employment Security Board, 124 Vt. 42, 197 A.2d 483 (1963), overruled on other grounds, Shufelt v. Department of Employment & Training (1987) 148 Vt. 163, 531 A.2d 894.

73. Availability.

A showing of good cause is the first stage a claimant who refuses to accept suitable work when offered must pass in order to demonstrate eligibility; if the Department determines that claimant has shown good cause, it must then determine whether restrictions, even with good cause, substantially impair claimant's attachment to the labor market. Shufelt v. Department of Employment & Training, 148 Vt. 163, 531 A.2d 894 (1987).

Although a cause that justifies an employee in leaving employment, or in refusing offered employment, will also, in most instances, prevent him from meeting test of availability for work and thus disqualify him from receiving benefits, is such a claimant is able and available to do suitable work in spite of his disability, he may still be entitled to benefits. Willard v. Vermont Unemployment Compensation Commission, 122 Vt. 398, 173 A.2d 843 (1961).

Limitations placed on availability for employment have the effect of circumscribing the labor market to which a claimant for unemployment compensation asserts attachment, and if the imposed conditions are used to justify the refusal of suitable employment, yet have no sound causal basis, recovery of benefits is barred. Willard v. Vermont Unemployment Compensation Commission, 122 Vt. 398, 173 A.2d 843 (1961).

74. Period of adjustment.

A laid-off employee who does not have good cause for refusing employment offered him is not entitled to a period of adjustment to the labor market following his layoff. Nurmi v. Vermont Employment Security Board, 124 Vt. 42, 197 A.2d 483 (1963), overruled on other grounds, Shufelt v. Department of Employment & Training (1987) 148 Vt. 163, 531 A.2d 894.

75. Length of unemployment.

In determining "suitable" work, length of unemployment is a factor requiring consideration, and after an adjustment period the unemployed person must accept work involving less competence and lower remuneration. In re Potvin, 132 Vt. 14, 313 A.2d 25 (1973).

76. Offer of employment.

Under provision of subdivision (a)(2)(C) of this section relating to offer of suitable work, an offer that is vague, speculative and lacking in detail is no offer at all. Calabi v. Department of Employment Security, 135 Vt. 392, 376 A.2d 349 (1977).

77. Adequacy of wages offered.

Employment Security Board's conclusion that an offer of a permanent position to a temporary employee at a considerable reduction in salary was not an offer of "suitable work" was a matter within Board's expertise, and would not be overturned on appeal absent a showing of error. Lincoln v. Department of Employment & Training, 156 Vt. 316, 592 A.2d 885 (1991).

When wage is being considered under unemployment compensation rule that one may be disqualified from benefits for refusing suitable work, but need not accept work at substantially lower wages, speculation on prospects of success in a new and untried position and on prospects of having higher wages where wages depend at least partly on production are expectations, not facts, and the issue must be dealt with on basis of existing circumstances as established by the evidence. Martin v. Department of Employment Security, 138 Vt. 475, 417 A.2d 932 (1980).

Although one may be disqualified from unemployment compensation benefits for refusing suitable work, one need not accept work at substantially less skill or pay levels, and where there was a substantially lower wage offered for a job with less skill and the offer came within a very short time of applicant's layoff, there could be no disqualification for refusing the position. Martin v. Department of Employment Security, 138 Vt. 475, 417 A.2d 932 (1980).

"Suitable" work requirement does not require that job offer must be for wages equal to that of old work, but statute is designed to preserve, as much as possible, claimant's present economic status and standard of living. In re Potvin, 132 Vt. 14, 313 A.2d 25 (1973).

A claimant's refusal of a job, absent other circumstances, will be held unjustified where the proffered wages are not significantly less than former wages; but refusal of a job which offers a substantial reduction in pay will often be held justified, and benefits in the latter case may not be discontinued. In re Potvin, 132 Vt. 14, 313 A.2d 25 (1973).

Employment Security Board, which relied upon evidence that hourly wage of $1.60 prevailed for chambermaids when it determined that chambermaid's job was suitable work for claimant, should have also considered claimant's prior earnings, and, if newly offered job fell significantly short of either standard, benefits should not have been denied. In re Potvin, 132 Vt. 14, 313 A.2d 25 (1973).

78. Hours of work.

The demands of parental responsibility may constitute good cause for limiting employment to certain hours of the day upon a clear showing that such limitation is necessary and reasonable; overruling Nurmi v. Vermont Employment Security Board (1963) 124 Vt. 42, 197 A.2d 483 to the extent of conflict. Shufelt v. Department of Employment & Training, 148 Vt. 163, 531 A.2d 894 (1987).

Unemployment compensation claimant could be disqualified for failure to accept available suitable work without good cause where she was offered work on a four day week and six hours per day basis, the wages would be the same, after deductions, as her unemployment benefits, the job was substantially the same as her previous employment and she refused the job because she believed the part time work would not leave her sufficient time to seek a full time job. Frye v. Vermont Employment Security, 134 Vt. 131, 353 A.2d 339 (1976).

79. Geographical area of employment.

In finding that a claimant for unemployment benefits had rejected suitable work as an electrical helper on a job site in Albany, New York, about five hours from the claimant's home, the Employment Security Board erred by finding a larger labor market area than the evidence supported. No evidence supported the Board's finding that the work that the claimant was qualified to perform required lengthy travel distances, and the administrative law judge, whose findings the Board had adopted, had made a labor market area finding directly to the contrary, at least with respect to a travel distance as far as Albany. Piper v. Dep't of Labor, 189 Vt. 417, 22 A.3d 438 (2011).

In determining disqualification for unemployment compensation under provision of this section relating to disqualification for failure to apply for available, suitable work, occupation of waitress is not so highly specialized as to come automatically within rule that a person of highly specialized skills must be willing to travel greater distances to find available, suitable work and accede to a labor market of sufficient geographical area to include employers utilizing those specialized skills. Palucci v. Department of Employment Security, 135 Vt. 156, 376 A.2d 14 (1977).

Availability of public transportation in regard to accessibility to jobs outside the claimant's geographical area does not automatically extend the labor market to include that outside area, for purposes of determining claimant's disqualification from unemployment compensation for refusing to accept available, suitable work. Palucci v. Department of Employment Security, 135 Vt. 156, 376 A.2d 14 (1977).

For purposes of determining disqualification for unemployment compensation, conclusion of Employment Security Board that claimant who had no transportation of her own must supply it to reach a job seven miles from her home was completely unsupportable since it could not reasonably be said that one drawing $27.00 per week unemployment benefits must move, buy a car, or hire a cab to reach a job outside the area, seven miles distant, paying $1.50 per hour plus tips for work as a breakfast waitress. Palucci v. Department of Employment Security, 135 Vt. 156, 376 A.2d 14 (1977).

Where unemployed waitress was expressly found to be available for work and city of Rutland was expressly found to be her labor market area, decision of Employment Security Board extending claimant's labor market area to include a town some seven miles distant, without evidentiary basis, was an error. Palucci v. Department of Employment Security, 135 Vt. 156, 376 A.2d 14 (1977).

80. Physical condition of claimant.

Claimant's physical fitness and degree of risk to his health may be considered in evaluating "suitability" of work. Willard v. Vermont Unemployment Compensation Commission, 122 Vt. 398, 173 A.2d 843 (1961).

81. Rejection for personal reasons.

Unemployment compensation claimant was disqualified from receiving benefits where she had worked as a waitress and turned down a job as a lunch counter attendant, requiring cooking and serving light lunches, on the ground that she did not feel capable of doing the work and did not want the responsibilities inherent in the job; the refusal to accept the job was personal and not job-related. Lanctot v. Department of Employment Security, 134 Vt. 281, 356 A.2d 531 (1976).

82. Quitting after accepting.

The feasible and sensible test as to whether one who quits soon after accepting work accepted suitable work within meaning of subdivision (a)(2)(C) of this section is not dependent on any minimum period of work after acceptance, but rather, on whether, when a job is physically taken, it is accepted in good faith or accepted merely as a mask for refusal. Call v. Department of Employment Security, 138 Vt. 52, 411 A.2d 1336 (1980).

Two experienced carpenters offered employment partitioning office space, who reported for work, were assigned the task of renovating a partially gutted old building, concluded during the first day of work that the building was unsafe, told the employer they were not returning as they had decided to take a better job, and did not tell employer or unemployment office why they quit, accepted the job in good faith, and there was no basis for Employment Security Board's conclusion they refused offered work where board had determined that they accepted an offer of a job, that the job involved renovation, and that they reported to work. Call v. Department of Employment Security, 138 Vt. 52, 411 A.2d 1336 (1980).

V. HEALTH CONDITION

100. Generally.

Employment Security Board's decision denying a claimant's application for unemployment insurance benefits based on a health condition was inadequate, as it did not address evidence that the claimant believed he could perform low-stress sedentary part-time work and had been exploring job possibilities with his vocational rehabilitation counselor, that his counselor stated that he had transferable skills, and that his doctor stated that he could work as long as he engaged in limited lifting and was not exposed to pulmonary irritants. Furthermore, the claimant's application for Social Security Disability Insurance benefits was a relevant, but not dispositive, factor in assessing his eligibility for unemployment compensation. Lafountain v. Department of Labor, 207 Vt. 120, 186 A.3d 613 (2018).

A suspension of employment for nonemployment-related health reasons need not be formal or permanent to constitute a termination under subdivision (a)(3) of this section. Littlefield v. Department of Employment & Training, 145 Vt. 247, 487 A.2d 507 (1984).

Under subdivision (a)(3) of this section, there is no requirement that the health condition which precludes a claimant's discharge of employment duties, thus qualifying the claimant for receipt of benefits, be unrelated to, or not the result of aggravation by, job factors. Davis v. Department of Employment Security, 140 Vt. 269, 438 A.2d 375 (1981).

101. Last employing unit.

Under subdivision (a)(3) of this section, an employing unit cannot become the last employing unit for any particular employee until that employing unit becomes responsible for any subsequent unemployment benefits claimed by that employee. Littlefield v. Department of Employment & Training, 145 Vt. 247, 487 A.2d 507 (1984).

102. Certification by physician.

Subdivision (a)(3) of this section does not require physician to indicate that he knows when the claimant left the employ of the last employing unit, that the employee left the employing unit because of a health condition and that the health condition for which employee left the employment precluded discharge of the duties inherent in that employment; the plain language of subdivision (a)(3) requires only that the physician certify the health condition asserted by the claimant. Davis v. Department of Employment Security, 140 Vt. 269, 438 A.2d 375 (1981).

103. Causal connection.

While causal connection between a claimant's health condition and the unemployability based on the resulting preclusion of the discharge of normal employment duties must be found before a claimant for unemployment compensation can be classified and correct benefit status determined, it is neither required by law nor appropriate that this finding be made by the claimant's physician, which is charged with passing on the claim for unemployment compensation, and the evaluation of all factors surrounding the claim is properly within the department's exercise. Davis v. Department of Employment Security, 140 Vt. 269, 438 A.2d 375 (1981).

104. Unrelated to employment.

Where claimant for unemployment compensation benefits signed a contract to work as a mental health aide for a counseling service and following an accident which was unrelated to her work claimant notified the counseling service that a broken kneecap suffered in the accident prevented her from continuing to carry out her duties as a mental health aide, the Employment Security Board did not err in its determination that claimant terminated her employment for nonemployment-related health reasons. Littlefield v. Department of Employment & Training, 145 Vt. 247, 487 A.2d 507 (1984).

VI. LABOR DISPUTE

120. History.

The labor dispute disqualification provision of subdivision (a)(4) of this section was patterned after a provision in the federal Social Security Draft Bill for unemployment compensation prepared by the Committee on Economic Security in 1936, as were labor dispute disqualification provisions of similar statutes in 33 other states. Trapeni v. Department of Employment Security, 142 Vt. 317, 455 A.2d 329 (1982).

121. Stoppage of work.

The question of whether there has been a substantial curtailment of employer's operations and, therefore, a "stoppage of work" within the meaning of this section depends on the facts and circumstances of each case. Pfenning v. Department of Employment & Training, 151 Vt. 50, 557 A.2d 897 (1989).

The phrase "stoppage of work" in subdivision (a)(4) of this section refers to the effect upon the employer's operations rather than the cessation of work by the employees. Pfenning v. Department of Employment & Training, 147 Vt. 533, 522 A.2d 743 (1986).

Factors proper for consideration in resolving the question of whether there has been a stoppage of work within the meaning of subdivision (a)(4) of this section include a comparison of business revenues, production or services, and worker hours before and during the strike. Pfenning v. Department of Employment & Training, 147 Vt. 533, 522 A.2d 743 (1986).

The phrase "stoppage of work" in subdivision (a)(4) of this section refers to a curtailment of the employer's operations first, since 22 of the 23 states with similar statutes and that have interpreted the phrase have held that the phrase refers not to work of the claimant employees but to the operations of the employer; further, where the legislature had an opportunity in 1982 to totally eliminate the possibility of a striking employee qualifying for unemployment benefits by deleting the phrase "stoppage of work" but chose not to act, and thus expressed its intent to leave the labor dispute disqualifications intact and to adopt the administrative construction given to the statute; and finally, since only by construing "stoppage of work" to refer to the curtailment of the employer's operations is there given full effect to every word and clause of the provision. Trapeni v. Department of Employment Security, 142 Vt. 317, 455 A.2d 329 (1982).

Only by construing "stoppage of work" in subdivision (a)(4) of this section to refer to the curtailment of the employer's operations is there given full effect to every word and clause of that subdivision; where the phrase "stoppage of work" refers to cessation of work on the part of the employee, it would render the phrase "his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute" meaningless since the sentence has already mentioned unemployment - which always involves a stoppage of work by the employee - and presupposes the existence of that condition. Trapeni v. Department of Employment Security, 142 Vt. 317, 455 A.2d 329 (1982).

The Employment Security Board properly ruled that the labor dispute disqualification provision of subdivision (a)(4) of this section did not disqualify the claimants for benefits where there was no substantial curtailment of the employer's operations as a result of the strike since the phrase "stoppage of work" in the subdivision refers to a curtailment of the employer's operations. Trapeni v. Department of Employment Security, 142 Vt. 317, 455 A.2d 329 (1982).

Where Employment Security Board did not find a "stoppage of work," necessary to the labor dispute disqualification from unemployment compensation, Supreme Court could not supply the missing facts by examination of the transcript, but findings that there was a labor dispute and a picket line sufficiently supported conclusion there was a stoppage of work. LaFountain v. Vermont Employment Security Board, 133 Vt. 42, 330 A.2d 468 (1974).

122. Lockout.

The plain meaning of the term "labor dispute" in subdivision (a)(4) of this section is broad enough to encompass a lockout. Pfenning v. Department of Employment & Training, 147 Vt. 533, 522 A.2d 743 (1986).

The phrase "lockout or other dispute" in subdivision (a)(2)(E)(i) of this section indicates legislative intent to include lockout in the term "dispute" in subdivision (a)(4). Pfenning v. Department of Employment & Training, 147 Vt. 533, 522 A.2d 743 (1986).

123. Effect on employer's operations.

In deciding employees' claim for benefits during lockout by employer, Employment Security Board's use of number of machining operations as a method of measuring degree of curtailment of employer's operations was plausible. Pfenning v. Department of Employment & Training, 151 Vt. 50, 557 A.2d 897 (1989).

Both striking and locked out employees can receive unemployment compensation benefits if the employer's operations are not substantially curtailed. Pfenning v. Department of Employment & Training, 147 Vt. 533, 522 A.2d 743 (1986).

If the employer is unaffected by employees' use of economic weapon of a strike, then the unemployed strikers should be treated no differently than any other unemployed workers. Whitcomb v. Department of Employment & Training, 147 Vt. 525, 520 A.2d 602 (1986).

A significant effect on the employer's operations is a prerequisite to denying compensation benefits where unemployment is due to a labor dispute. Whitcomb v. Department of Employment & Training, 147 Vt. 525, 520 A.2d 602 (1986).

Substantial curtailment of employer's operations, required to deny strikers unemployment benefits, means more than any deviation from normal operations. Whitcomb v. Department of Employment & Training, 147 Vt. 525, 520 A.2d 602 (1986).

The determination of substantial curtailment of employer's operations, required to deny strikers unemployment compensation benefits, must depend upon facts and circumstances of each case, but among the factors commonly considered are business revenues, production, services and worker hours before and during the strike. Whitcomb v. Department of Employment & Training, 147 Vt. 525, 520 A.2d 602 (1986).

Employment Security Board's conclusion that there had been substantial curtailment of operations of telephone company, supporting its denial of unemployment compensation benefits to striking employees, was justified where there had been significant curtailment of certain functions, a decrease in worker hours, a substantial increase in backlogs of installation orders and significant delays in calls requiring operator assistance. Whitcomb v. Department of Employment & Training, 147 Vt. 525, 520 A.2d 602 (1986).

124. Last employed.

"Last employed," within disqualification from unemployment benefits of person unemployed due to labor dispute where he was "last employed," means last permanently employed with intent to remain, not last in time. In re Hatch, 130 Vt. 248, 290 A.2d 180 (1972).

With respect to disqualification from unemployment compensation benefits of those out of work due to a labor dispute, who have not severed their employment, other employment during the dispute does not by itself sever the relation with the employer involved in the labor dispute. LaFountain v. Vermont Employment Security Board, 133 Vt. 42, 330 A.2d 468 (1974).

Where employee refused to cross picket line resulting from a labor dispute between his union and his employer, did not notify employer that he intended to terminate his employment, said he couldn't go to work when, about four months later, employer offered him work, and after the strike began worked for one company on three occasions, for a day twice and for three and a half weeks once, and also worked for two other companies, once for three days and the other time for a week and a half, Employment Security Board properly denied him unemployment compensation benefits on the ground he was last employed with the struck employer, did not sever his employment and thus was not entitled to benefits under labor dispute disqualification. LaFountain v. Vermont Employment Security Board, 133 Vt. 42, 330 A.2d 468 (1974).

125. Purging disqualification.

Labor dispute disqualification from unemployment compensation is purged by taking another job only where that job is intended to be permanent, to completely replace and terminate the former employment, and to sever completely the relationship with the former employer. In re Hatch, 130 Vt. 248, 290 A.2d 180 (1972).

Where unemployment compensation claimant stated that he did not know whether he would have left job, taken after former employment was interrupted by labor dispute, and returned to former employment, and that he was awful tempted to stay at new job, and where he signed up with former employer, after work stoppage, to have his company life insurance kept in force, and admitted that he had never severed relationship with former employer, he had not purged himself of labor dispute disqualification by taking another job, as such job was not permanent and did not sever completely the former employment. In re Hatch, 130 Vt. 248, 290 A.2d 180 (1972).

126. Burden of proof.

Employee out of work during a labor dispute, who seeks to avoid unemployment compensation disqualification of such persons who have not severed their employment, has burden of proving that other work during the dispute was not a stop-gap measure which employee intended to drop should the dispute end, and of proving a bona fide severance of employment with the employer involved in the dispute. LaFountain v. Vermont Employment Security Board, 133 Vt. 42, 330 A.2d 468 (1974).

Burden of proof is on unemployment compensation claimant to show that his employment with a different employer following work stoppage due to labor dispute purged him of labor dispute disqualification from benefits. In re Hatch, 130 Vt. 248, 290 A.2d 180 (1972).

127. Tests.

Voluntariness is not the test for the labor dispute disqualification of subdivision (a)(4) of this section. Pfenning v. Department of Employment & Training, 147 Vt. 533, 522 A.2d 743 (1986).

VII. RECEIPT OF REMUNERATION

140. Vacation pay.

Employer's payment of accrued vacation pay to an unemployment benefits claimant was not equivalent to paying her wages for the remainder of the notice period and thus did not render her separation voluntary. Kelley v. Dep't of Labor, 197 Vt. 155, 101 A.3d 895 (2014).

Where Board, pursuant to this section, denied unemployment compensation claim on basis that claimant received vacation pay exceeding benefits to which he may have been otherwise entitled, and Board's computation was reached by allocating vacation pay received from two former employers in 1973, as well as amount received from current employer in 1974, and applying total to period of customary industry vacation shutdown in July, 1974, allocation could not stand as there was no basis in record for Board's allocation of 1973 payments to the 1974 vacation period; vacation pay received should have been allocated to period immediately following termination of employment. Griffith v. Department of Employment Security, 135 Vt. 331, 376 A.2d 758 (1977).

Employee who is laid off prior to June 1, but receives vacation pay for which he is eligible subsequent to June 1, is disqualified from receiving benefits during the period for which he receives vacation pay. 1948-50 Op. Atty. Gen. 237.

141. Pension.

Where at a time of his application for unemployment compensation benefits plaintiff was receiving a monthly pension, fifty percent of which was contributed to him during the course of his former employment, his benefit amount was properly reduced by the prorated weekly amount of his pension after the deduction of the percentage of his contribution as required by the unambiguous language of subdivision (a)(5)(E)(i) of this section, notwithstanding the fact that under the tax laws pension payments he received for the first three years after retirement would be considered as consisting entirely of his contributions. Littlefield v. Department of Employment & Training, 143 Vt. 495, 468 A.2d 566 (1983).

142. Leaves of absence.

In the unemployment-compensation-benefit context, a number of courts have held that an employee on leave has not voluntarily left his or her employment. Blue v. Dep't of Labor, 190 Vt. 228, 27 A.3d 1096 (2011).

§ 1345. Repealed. 1971, No. 77, § 8, eff. Dec. 31, 1971.

History

Former § 1345. Former § 1345, relating to the exclusion of service performed in course of educational study or training from the definition of employment, was derived from 1949, No. 131 , § 2.

§ 1346. Claims for benefits; rules; notice.

  1. Claims for benefits shall be made in accordance with rules adopted by the Board.
  2. Every person making a claim shall certify that he or she has not, during the week with respect to which waiting period credit or benefits are claimed, earned or received wages or other remuneration for any employment, whether subject to this chapter or not, otherwise than as specified in his or her claim. All benefits shall be paid in accordance with the rules adopted by the Board.

    An employer shall post notice of how an unemployed individual can seek unemployment benefits in a form provided by the Commissioner in a place conspicuous to individuals performing services for the employer. The notice shall also advise individuals of their rights under the Domestic and Sexual Violence Survivor's Transitional Employment Program, established pursuant to chapter 16A of this title. The Commissioner shall provide a copy of the notice to an employer upon request without cost to the employer.

    (2) An employer shall provide an individual with notification of the availability of unemployment compensation at the time of the individual's separation from employment. The notification may be based on model notification language provided by the U.S. Secretary of Labor.

    Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1973, No. 155 (Adj. Sess.), § 1, eff. March 15, 1974; 2019, No. 85 (Adj. Sess.), § 19, eff. Feb. 20, 2020; 2019, No. 91 (Adj. Sess.), § 34, eff. March 30, 2020.

History

Source. V.S. 1947, § 5380. 1941, No. 153 , § 2. 1939, No. 181 , § 7. 1936, No. 1 (Sp. Sess.), § 6.

Amendments--2019 (Adj. Sess.) Act No. 85 rewrote subsec. (a); in the second sentence of subsec. (b), substituted "the rules adopted by" for "such regulations as" and deleted "may prescribe" at the end; and added subsec. (c).

Act No. 91 added the subdiv. (c)(1) designation and added subdiv. (c)(2).

Amendments--1973 (Adj. Sess.). Designated first paragraph as subsec. (a) and second paragraph as subsec. (b), inserted "earned or" preceding "received" in the first sentence of subsec. (b) and deleted "through employment offices" following "paid" in the second sentence of that subsection.

Amendments--1961. Substituted "commissioner" for "board" following "supplied by the" in the third sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

ANNOTATIONS

1. Construction.

Where this section required all received wages to be reported, person who had earned but not received wages for a week for which benefits were claimed did not violate this section by reporting that no wages were received and could not be penalized on the ground that he intentionally misrepresented or failed to disclose a material fact with respect to his benefits claim. Seymour v. Department of Employment Security, 133 Vt. 397, 340 A.2d 96 (1975).

§ 1347. Nondisclosure or misrepresentation.

  1. Any person who fails, without good cause, to make reasonable effort to secure suitable work when directed to do so by the employment office or the Commissioner and has received any amount as benefits under this chapter with respect to weeks for which the person is determined to be ineligible for such failure, and any person who by nondisclosure or misrepresentation by him or her, or by another, of a material fact (irrespective of whether such nondisclosure or misrepresentation was known or fraudulent) has received any amount as benefits under this chapter while any conditions for the receipt of benefits imposed by this chapter were not fulfilled in his or her case or while he or she was disqualified from receiving benefits, shall be liable for such amount. Notice of determination in such cases shall specify that the person is liable to repay to the Fund the amount of overpaid benefits, the basis of the overpayment, and the week or weeks for which such benefits were paid. The determination shall be made within three years from the date of such overpayment.
  2. Any person who receives remuneration described in subdivision 1344(a)(5) of this title that is allocable in whole or in part to prior weeks during which he or she received any amounts as benefits under this chapter shall be liable for all such amounts of benefits or those portions of such amounts equal to the portions of such remuneration properly allocable to the weeks in question. Notice of determination in such cases shall specify that the person is liable to repay to the Fund the amount of overpaid benefits, the basis of the overpayment, and the week or weeks for which such benefits were paid. The determination shall be made within three years from the date of such overpayment or within one year from the date of receipt of the remuneration, whichever period is longer.
  3. The person liable under this section shall repay such amount to the Commissioner for the Fund. In addition to the repayment, if the Commissioner finds that a person intentionally misrepresented or failed to disclose a material fact with respect to his or her claim for benefits, the person shall pay an additional penalty of 15 percent of the amount of the overpaid benefits. Any additional penalty amount collected shall be deposited in the Fund. Such amount may be collectible by civil action in  the Superior Court, in the name of the Commissioner.
  4. In any case in which under this section a person is liable to repay any amount to the Commissioner for the Fund, the Commissioner may withhold, in whole or in part, any future benefits payable to such person, and credit such withheld benefits against the amount due from such person until it is repaid in full, less any penalties assessed under subsection (c) of this section.
  5. In addition to the foregoing, when it is found by the Commissioner that a person intentionally misrepresented or failed to disclose a material fact with respect to his or her claim for benefits and in the event the person is not prosecuted under section 1368 of this title and penalty provided in section 1373 of this title is not imposed, the person shall be disqualified and shall not be entitled to receive benefits to which he or she would otherwise be entitled after the determination for such number of weeks not exceeding 26 as the Commissioner shall deem just. The notice of determination shall also specify the period of disqualification imposed hereunder.
  6. Interested parties shall have the right to appeal from any determination under this section and the same procedure shall be followed as provided for in subsection 1348(a) and section 1349 of this title.

    Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1965, No. 74 , eff. May 26, 1965; 1969, No. 205 (Adj. Sess.); 1973, No. 155 (Adj. Sess.), § 2, eff. March 15, 1974; 1981, No. 86 , § 14, eff. May 10, 1981; 1987, No. 100 , § 3; 1993, No. 177 (Adj. Sess.), § 7; 1995, No. 96 (Adj. Sess.), §§ 1, 2; 1997, No. 101 (Adj. Sess.), § 4; 2011, No. 162 (Adj. Sess.), § E.401.2; 2013, No. 179 (Adj. Sess.), § E.400.1; 2017, No. 74 , § 53.

History

Source. 1955, No. 40 , § 1. 1951, No. 121 , § 1. V.S. 1947, § 5381. 1941, No. 153 , § 2.

2014. Subsec. (c): Substituted "the Superior Court" for "a Vermont District or Superior Court" in accordance with 2009, No. 154 (Adj. Sess.) § 236.

Amendments--2017. Subsec. (b): Deleted "(A), (B), (C), (D), (E), or (F)" following "subdivision 1344(a)(5)" in the first sentence.

Amendments--2013 (Adj. Sess.). Subsec. (c): Added the third sentence.

Amendments--2011 (Adj. Sess.). Subsec. (c): Added the present second sentence and deleted the fourth sentence.

Subsec. (d): Inserted ", less any penalties assessed under subsection (c) of this section" following "full" at the end of the first sentence and deleted the second sentence.

Subsec. (e): Deleted ", provided, however, that no benefits shall be denied to a claimant because of such determination after three years from the date thereof or the date of final decision on an appeal from such determination" following "just".

Amendments--1997 (Adj. Sess.). In the first sentence of subsec. (b) substituted "(E), or (F)" for "or (E)".

Amendments--1995 (Adj. Sess.) Subsec. (c): Inserted "or superior" preceding "court" in the second sentence and substituted "five" for "3" preceding "years" in the third sentence.

Subsec. (d): Substituted "five years" for "3 years" in the second sentence and made minor changes in phraseology throughout the subsection.

Amendments--1993 (Adj. Sess.). Subsec. (a): Deleted "or who fails, without good cause, either to apply for available, suitable work so directed by the employment office or the commissioner or to accept suitable work when offered him" following "commissioner" and "or disqualified" following "ineligible" and made other minor changes in phraseology.

Amendments--1987. Subsec. (b): Inserted "of this title" following "section 1344(a)(5)" and "or she" preceding "received" in the first sentence and deleted the former second sentence.

Amendments--1981. Redesignated former subsec. (b) as present subsec. (c), former subsecs. (c)-(e) as present subsecs. (d)-(f), and added present subsec. (b).

Amendments--1973 (Adj. Sess.). Subsec. (a): Rewrote the first sentence.

Amendments--1969 (Adj. Sess.). Subsec. (a): Substituted "determination" for "redetermination" in the second sentence and added the third sentence.

Subsec. (b): Amended generally.

Subsec. (c): Amended generally.

Subsec. (d): Amended generally.

Subsec. (e): Substituted "determination" for "redetermination" and "sections 1348(a) and 1349 of this title" for "the case of appeal from the original decision".

Amendments--1965. Section amended generally.

Amendments--1961. Substituted "commissioner" for "board" throughout the section.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

Suspension of period of disqualification during public health emergency. 2019, No. 154 (Adj. Sess.), § E.400 provides: "Notwithstanding any provision of law to the contrary, during the state of emergency imposed pursuant to Executive Order 01-20, as amended, any period of disqualification imposed pursuant to 21 V.S.A. § 1347(e) shall be temporarily suspended until the first full calendar week following the termination of the state of emergency declared in relation to COVID-19 by Executive Order 01-20, as amended. Nothing in this section shall be construed to diminish a period of disqualification imposed pursuant to 21 V.S.A. § 1347."

ANNOTATIONS

Analysis

1. Repayment of benefits.

Because subsection (b) of this section requires full reimbursement, claimant was required to repay to the Department of Employment and Training unemployment compensation benefits received for the time period that overlapped with the period for which he or she later received workers' compensation benefits. Deductions cannot be made under the common fund doctrine, even for equitable considerations. Butson v. Department of Employment and Training, 179 Vt. 599, 892 A.2d 255 (mem.) (January 12, 2006).

Unpaid salary awarded to wife as part of a contempt sanction under a temporary order entered in a divorce action did not have to be reduced by the amount of unemployment compensation wife received during the period in question. Whether wife was required to repay the unemployment compensation she received following the court's award was a matter between her and the Department of Employment and Training. Tracey v. Gaboriault, 166 Vt. 269, 691 A.2d 1056 (1997).

Although unemployment compensation claimants who had quit work because they thought the building they were working on as carpenters was unsafe initially did not advise the unemployment compensation office as to why they quit, where they gave a full account of the matter when interviewed by a claim representative they could not be required to repay benefits on ground of nondisclosure or misrepresentation of a material fact. Call v. Department of Employment Security, 138 Vt. 52, 411 A.2d 1336 (1980).

Recipient of unemployment compensation benefits was not liable to repay benefits where record contained no evidence of nondisclosure or misrepresentation. In re Potvin, 132 Vt. 14, 313 A.2d 25 (1973).

Where, in interview, unemployment compensation claims examiner found that claimant who had been receiving benefits did not fulfill the conditions of receiving benefits in that she limited the factory work she sought and was suitable for to the first shift only, for domestic reasons, claimant was not liable for repayment of benefits received during the first week that she was found disqualified, because it was not shown that nondisclosure or misrepresentation on her part led to receipt of the benefits. In re Prouty, 131 Vt. 504, 310 A.2d 12 (1973).

2. Withholding of benefits.

Commission, prior to a determination of fraud by it, did not have the right to withhold benefits payments on claims subsequent to a fraudulent claim where there was no evidence of any fraud in such subsequent claims. 1948-50 Op. Atty. Gen. 244.

3. Standard of proof.

Employment Security Board was not required to apply beyond a reasonable doubt standard of proof to evidence offered to show that unemployment compensation claimant had intentionally misrepresented amount of income earned under subsection (e) of this section; there was no error in use of clear and convincing evidence standard. Harrington v. Department of Employment & Training, 152 Vt. 446, 566 A.2d 988 (1989).

4. Evidence.

On appeal of administrative penalty assessed to unemployment compensation claimant for intentionally misrepresenting amount of income earned, under subsection (e) of this section, Employment Security Board could rely on hearsay evidence in reaching its decision. Harrington v. Department of Employment & Training, 152 Vt. 446, 566 A.2d 988 (1989).

Cited. Seymour v. Department of Employment Security, 133 Vt. 397, 340 A.2d 96 (1975); Elliott v. Department of Employment Security, 137 Vt. 536, 409 A.2d 563 (1979); Whitchurch v. Department of Employment Security, 139 Vt. 566, 433 A.2d 284 (1981); Gutches v. Department of Employment Security, 141 Vt. 587, 450 A.2d 1146 (1982); Trombley v. Department of Employment & Training, 146 Vt. 332, 503 A.2d 537 (1985).

§ 1348. Procedure.

  1. An authorized representative of the Commissioner shall pass upon each claim for benefits as provided in this chapter and shall, after such filing, promptly award such benefits as shall be found to be payable under the provisions of this chapter.  Prompt notice in writing of the determination of such representative and reasons therefor in respect to such claim shall be given to the claimant, his or her last employer, all other interested parties, and the Commissioner. Any interested party may, within 30 days after notice thereof, file an appeal from the determination with an appeals referee employed by the Commissioner.  Such appeal shall, after notice to the claimant, his or her last employer, and all other interested parties, be heard at a place as convenient to the parties as, in the judgment of the referee, is practical, within 30 days after such appeal is filed with the referee; after the hearing the determination shall be sustained, modified, or set aside by the referee as may be warranted. Prompt notice in writing of the decision of the referee and the reasons therefor shall be given.
  2. The authorized representative of the Commissioner may, for good cause, at any time within one year after date of the original determination, reconsider an award of benefits or the denial of a claim therefor, and may issue a redetermination which may award, terminate, continue, increase, or decrease such benefits.  Such redetermination shall not affect any benefits paid before the date thereof under authority of the prior determination in the absence of nondisclosure or misrepresentation of a material fact.  Prompt notice in writing of such redetermination and the reasons therefor shall be given to the claimant, his or her last employer, and all other interested parties any of whom shall have the same right to appeal and the same procedure shall be followed as provided for in case of appeal from the original determination.

    Amended 1959, No. 117 ; 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1965, No. 66 , eff. May 19, 1965; 1989, No. 8 , § 7.

History

Source. V.S. 1947, § 5382. 1947, No. 195 , § 2. 1941, No. 153 , § 2(b). 1939, No. 181 , § 14. 1936, No. 1 (Sp. Sess.), § 6(b).

Amendments--1989. Subsec. (a): Deleted "to" following "parties and" in the second sentence and substituted "30 days after notice thereof" for "ten days after such notice is given" preceding "file an appeal" in the third sentence.

Amendments--1965. Subsec. (a): Amended generally.

Subsec. (b): Substituted "redetermination" for "new decision" in the first and second sentences and "nondisclosure or misrepresentation of a material fact" for "fraud or misrepresentation" following "absence of" in the second sentence, and rewrote the third sentence.

Amendments--1961. Substituted "commissioner" for "board" throughout the section.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

Amendments--1959. Deleted provision for reconsideration of decision by representative on application within 60 days, and by adding new paragraph designated as subsec. (b).

ANNOTATIONS

Analysis

1. Application.

Town employer failed in its contention that this section required only that the Department of Employment and Training make a prompt decision on each claim, and not that it actually disburse disputed funds once the claimant receives a favorable decision because, under federal and State law, the department was both authorized and required to disburse the funds to a former employee after the Employment Security Board found them payable. Holton v. Department of Employment and Training, 178 Vt. 147, 878 A.2d 1051 (April 1, 2005).

The prompt awarding requirement applies to benefits found payable at all levels of the administrative process, including those benefits first awarded by the Employment Security Board on appeal. Holton v. Department of Employment and Training, 178 Vt. 147, 878 A.2d 1051 (April 1, 2005).

This section is only applicable to requests for redetermination involving the issue of a claimant's entitlement to the benefits originally denied him, and does not apply to requests for redetermination involving the issue of a claimant's disqualification for future benefits. Atwood v. Department of Employment Security, 140 Vt. 276, 438 A.2d 392 (1981).

2. Notice of determination.

Under this section's provision that notice of initial unemployment compensation claim determination be sent to claimant, the employer, interested parties and the Commissioner, employer's attorney was not an interested party and was not entitled to notice separate from notice sent employer; where employer, but not its attorney, was sent notice and employer did not appeal within 10-day time for appeal, appeal was properly dismissed as untimely, and the fact that employer's attorney appealed four days after attorney received notice of initial determination did not save appeal. Cleveland v. Department of Employment Security, 138 Vt. 208, 414 A.2d 1157 (1980).

3. Time for appeal.

Claimant received "prompt notice" within meaning of subdivision (a) of this section, despite five-day delay between issuance and receipt of decision, where notice he received allowed him a reasonable amount of time to preserve his appeal and occurred by an acceptable method of delivery. Trask v. Department of Employment & Training, 170 Vt. 589, 749 A.2d 1130 (mem.) (2000).

Where claimant for unemployment compensation benefits failed to file appeal from determination of his benefits within 10-day period prescribed by subsection (a) of this section, the appeals referee lacked jurisdiction to entertain the purported appeal. Whitchurch v. Department of Employment Security, 139 Vt. 566, 433 A.2d 284 (1981).

In absence of timely notice of appeal, unemployment compensation referee lacked jurisdiction to entertain the appeal. Elliott v. Department of Employment Security, 137 Vt. 536, 409 A.2d 563 (1979).

Where appeal from claims examiner to appeals referee was untimely, Employment Security Board correctly reversed the appeals referee's ruling, and board had no power to extend the appeal period. Allen v. Vermont Employment Security Board, 133 Vt. 166, 333 A.2d 122 (1975).

Cited. Frye v. Department of Employment Security, 134 Vt. 131, 353 A.2d 339 (1976); Hunt v. Department of Employment Security, 142 Vt. 611, 458 A.2d 1124 (1983); Perry v. Department of Employment & Training, 147 Vt. 621, 523 A.2d 1242 (1987).

§ 1349. Appeals to Board; Supreme Court appeal.

Within 30 days after date thereof, an interested party may appeal from the decision of the referee to the Board, by filing a written request therefor in the manner prescribed by regulations of the Board. The appeal shall be heard by the Board after notice to the claimant and his or her last employer, within a reasonable time after notice of the appeal is filed, and the Board may affirm, modify, or reverse the decision of the referee solely on the basis of evidence in the record transferred to it by the referee, or upon the basis of evidence in the record and such additional evidence as it may direct to be taken. Upon motion made by the Commissioner, a review may be initiated by the Board of a decision of the referee or a benefit determination. The Board shall make its findings of fact and conclusions thereon. Prompt notice of the findings of fact, ruling of law, conclusions, and decision of the Board shall be given as hereinabove provided. The decision shall be final unless an appeal to the Supreme Court is taken. Testimony given at any hearing upon a disputed claim shall be recorded, but the record need not be transcribed unless ordered.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 11, eff. July 11, 1961; 1971, No. 185 (Adj. Sess.), § 196, eff. March 29, 1972; 1989, No. 8 , § 8.

History

Source. 1955, No. 131 . 1951, No. 121 , § 2. V.S. 1947, § 5383. 1936, No. 1 (Sp. Sess.), § 6(c).

Amendments--1989. Substituted "30 days after date thereof" for "six days after notice of the decision of the referee is given" preceding "an interested" and inserted "of the referee" following "decision" in the first sentence, and substituted "upon motion made by the commissioner a review may be initiated" for "the commissioner on his own motion may initiate a review" preceding "by the board" in the third sentence.

Amendments--1971 (Adj. Sess.). Added "Supreme Court appeal" at the end of the catchline, substituted "to the supreme court is taken" for "is taken as provided in 12 V.S.A. section 2382" following "appeal" at the end of the sixth sentence and made minor stylistic changes throughout the section.

Amendments--1961. Rewrote the third sentence, deleted the former fifth sentence and substituted "an appeal is taken as provided in 12 V.S.A. section 2382" for "a petition to review or an appeal is filed as provided in sections 1353 and 1355 of this title" following "unless" at the end of the sixth sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

ANNOTATIONS

Analysis

1. Review by Board .

Employment Security Board has no power to extend period set forth in this section during which claimant may appeal denial of unemployment compensation benefits. Hunt v. Department of Employment Security, 142 Vt. 611, 458 A.2d 1124 (1983).

Where appeal to Employment Security Board was untimely, Board had no jurisdiction and was without power to extend the appeal period. Allen v. Employment Security Board, 133 Vt. 166, 333 A.2d 122 (1975).

*2. Basis for review and decision.

The Employment Security Board has the option at all times of deciding a matter on the record of the evidence heard by the referee, or of supplementing that record by hearing further evidence of its own. Davis v. Department of Employment Security, 140 Vt. 269, 438 A.2d 375 (1981).

Employment Security Board has power to affirm, modify or reverse decision of referee, but in exercising this function, Board cannot violate fundamental principles of fairness. Kaufman v. Department of Employment Security, 136 Vt. 72, 385 A.2d 1080 (1978).

Employment Security Board's rule that appeals be heard upon the evidence in the record made before referee and that the Board may direct a referee to take additional evidence did not limit the Board to a determination as to whether or not the findings of the referee were supported by the credible evidence and the Board could make its own findings, and it was not improper to provide by rule for the taking of further evidence before a referee rather than before the Board. Frye v. Department of Employment Security, 134 Vt. 131, 353 A.2d 339 (1976).

The Employment Security Board has the option of deciding an appeal on the record of the evidence heard by the referee without more, or of supplementing that by hearing further evidence before arriving at its decision. In re Wheelock, 130 Vt. 136, 287 A.2d 569 (1972).

*3. Issues.

Where only issue submitted on appeal to Employment Security Board for its determination was correctness of claims examiner's and appeals referee's findings that employee had been discharged for misconduct, Board's departure from such issue and conclusion that employee's employment was terminated by voluntary quit, without giving notice to employee that such conclusion was being considered, deprived employee of opportunity to make countervailing argument and constituted denial of fair hearing. Kaufman v. Department of Employment Security, 136 Vt. 72, 385 A.2d 1080 (1978).

4. Review by Court.

The findings of the Employment Security Board on an appeal are to be affirmed if supported by credible evidence, even in the presence of substantial evidence to the contrary. In re Wheelock, 130 Vt. 136, 287 A.2d 569 (1972).

5. Construction with other law .

Provision of 21 V.S.A. § 1321(f) making noncontributing employers liable to the Department of Employment and Training for "benefits paid but denied on appeal" does not conflict with the right of appeal to the Supreme Court in this section; furthermore, the latter provision applies generally to all parties, including employees, contributing employers, and noncontributing employers and of these three, only noncontributing employers will face potential mootness problems. Holton v. Department of Employment and Training, 178 Vt. 147, 878 A.2d 1051 (April 1, 2005).

6. Evidence.

Procedure the Employment Security Board employed in finding that a claimant had rejected suitable employment would have been grounds for a new hearing even had the evidence supported the Board's ultimate decision. The claimant was entitled to rely on the Board's rules and the representation, made in numerous ways, that no evidence would be taken by the Board; not only was that representation dishonored, but the evidence, which clearly affected the result, came in ex parte and the witness was not even sworn. Piper v. Dep't of Labor, 189 Vt. 417, 22 A.3d 438 (2011).

Cited. In re Moore, 128 Vt. 581, 269 A.2d 853 (1970); Handly v. Department of Employment Security, 135 Vt. 20, 369 A.2d 1152 (1976); Longe v. Department of Employment Security, 135 Vt. 460, 380 A.2d 76 (1977); Wheeler v. Department of Employment Security, 139 Vt. 69, 421 A.2d 1315 (1980); Pfenning v. Department of Employment & Training, 147 Vt. 533, 522 A.2d 743 (1986); Perry v. Department of Employment & Training, 147 Vt. 621, 523 A.2d 1242 (1987).

§ 1350. Interested party disqualified on behalf of Commissioner.

A person shall not participate on behalf of the Commissioner in any case in which he or she is an interested party.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961.

History

Source. V.S. 1947, § 5384. 1947, No. 202 , § 10,325. 1936, No. 1 (Sp. Sess.), § 6(d).

Amendments--1961. Substituted "commissioner" for "board" in the catchline and text.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" in the catchline and text.

§ 1351. Procedure.

The manner in which disputed claims shall be presented and the conduct of hearings before the Commissioner, a referee, and the Board shall be governed by suitable rules and regulations established by the Board. The Commissioner, the referee, and the Board shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure except as provided in this chapter, but may conduct a hearing or trial in such manner as to ascertain the substantial rights of the parties.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 12, eff. July 11, 1961.

History

Source. V.S. 1947, § 5385. 1936, No. 1 (Sp. Sess.), § 6(e).

Amendments--1961. Substituted "commissioner, a referee and the Board" for "board or its agents" preceding "shall be" in the first sentence and "commissioner, the referee and the board" for "board and its agents" preceding "shall not be" and "a" for "such" preceding "hearing" in the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

ANNOTATIONS

Analysis

1. Role of referee.

An appeals referee in an unemployment compensation hearing is not an advocate for any party, must act as an impartial investigator determining all of the facts, and at the same time owes claimant every assistance in presenting his case consistent with referee's duty to impartially decide the issues. Dague v. Department of Employment Security, 138 Vt. 57, 412 A.2d 706 (1980).

Where unemployment compensation claimant claimed on appeal that referee at hearing was not fair and impartial in that he did not advise claimant of right to subpoena employer or of implications of medical issue, and record showed referee properly assisted claimant and inquired into medical issue and as to reason for termination of employment, and claimant failed to show prejudice or to show what additional information or evidence he could add to that put before the referee at the hearing, no error would be found. Dague v. Department of Employment Security, 138 Vt. 57, 412 A.2d 706 (1980).

2. Hearing.

Appeals referee's refusal to grant claimant's request to issue a subpoena to employer's bookkeeper was an abuse of the discretion provided by section 1352 of this title and a failure to conduct the hearing "in such manner as to ascertain the substantial rights of the parties" as required by this section, where hearsay statements of the bookkeeper were introduced into the record at the hearing on the appeal. Langlois v. Department of Employment & Training, 149 Vt. 498, 546 A.2d 1365 (1988).

Where Employment Security Board, acting solely upon the record, sustained a conclusion below upon completely new grounds supported only by double hearsay put in evidence by an interested witness, and established a negative fact contradicted by the only direct evidence, without any attempt to secure better evidence, it did not conduct a hearing or trial in such manner as to ascertain the substantial rights of the parties within the purview of this section. Longe v. Department of Employment Security, 135 Vt. 460, 380 A.2d 76 (1977).

3. Evidence.

Use of hearsay statements in hearings of the Employment Security Board is acceptable practice, as the referee and the Board are not bound by common law or statutory rules of evidence. Bouchard v. Department of Emp. and Training, 174 Vt. 588, 816 A.2d 508 (mem.) (2002).

Pursuant to provisions of this section, hearsay evidence is normally admissible in unemployment compensation proceeding. Harrington v. Department of Employment & Training, 152 Vt. 446, 566 A.2d 988 (1989).

Cited. Kaufman v. Department of Employment Security, 136 Vt. 72, 385 A.2d 1080 (1978); Davis v. Department of Employment Security, 140 Vt. 269, 438 A.2d 375 (1981).

§ 1352. Witnesses; fees.

In the discharge of his or her duties prescribed by this chapter, any member of the Board, a referee, and any authorized agent of the Commissioner shall have power to administer oaths, take depositions, certify to official acts, and by subpoena compel the attendance of witnesses and the production of books, papers, documents, and records, necessary and material to be used in connection with any disputed claim. Witnesses summoned by a member of the Board, a referee, or an agent of the Commissioner in proceedings within this section shall be paid the same fees as witnesses summoned to appear before a Criminal Division of the Superior Court in civil causes. Such fees shall be paid out of the Vermont Employment Security Board Administration Fund.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 13, eff. July 11, 1961; 1973, No. 249 (Adj. Sess.), § 75, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 238.

History

Source. V.S. 1947, § 5386. 1947, No. 202 , § 10,327. 1936, No. 1 (Sp. Sess.), § 6(f).

Revision note. Substituted "attendance" for "attendances" preceding "of witnesses" in the first sentence to correct an apparent typographical error.

Amendments--2009 (Adj. Sess.). Substituted "criminal division of the superior court" for "district court".

Amendments--1973 (Adj. Sess.). Substituted "district" for "justice" preceding "court" in the second sentence.

Amendments--1961. Substituted "of the board, a referee and any authorized agent of the commissioner" for "or duly authorized agent of the board" following "member" and "attendances" for "attendance" preceding "of witnesses" in the first sentence, "of the board, a referee or an agent of the commissioner" for "or agent of the board" following "member" in the second sentence and "employment security board" for "unemployment compensation" following "Vermont" in the third sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "agent of the" in the first and second sentences.

Cross References

Cross references. Witness fees, see § 1551 et seq. of Title 32.

ANNOTATIONS

1. Subpoenas.

In an unemployment benefits case, it was error for the administrative law judge not to issue a subpoena for claimant to obtain records. The records, which showed who was working on the dates of drug-tampering incidents that occurred before the one for which claimant was fired, were relevant because the fact finder could have found it likely that the same person was responsible for each incident; thus, the records could be used to show that another person was responsible for the later incident over which claimant was fired. Shaddy v. Department of Labor, 186 Vt. 633, 987 A.2d 311 (mem.) (2009).

This section does not indicate how the Board or referee must use their subpoena power, other than indicating that they have some discretion in deciding when to issue subpoenas. Langlois v. Department of Employment & Training, 149 Vt. 498, 546 A.2d 1365 (1988).

Absent extraordinary circumstances, a request for a subpoena made at any time before the close of the initial hearing on a claim should be considered timely, because it is only at the hearing that the full merits of the request can be fully evaluated. Langlois v. Department of Employment & Training, 149 Vt. 498, 546 A.2d 1365 (1988).

It was a denial of due process of law for unemployment compensation appeals referee to refuse to grant claimant's request to issue a subpoena to employer's bookkeeper, where hearsay statements of the bookkeeper were introduced into the record at the hearing on the appeal. Langlois v. Department of Employment & Training, 149 Vt. 498, 546 A.2d 1365 (1988).

Appeals referee's refusal to grant claimant's request to issue a subpoena to employer's bookkeeper was an abuse of the discretion provided by this section and a failure to conduct the hearing "in such manner as to ascertain the substantial rights of the parties" as required by section 1351 of this title, where hearsay statements of the bookkeeper were introduced into the record at the hearing on the appeal. Langlois v. Department of Employment & Training, 149 Vt. 498, 546 A.2d 1365 (1988).

§ 1353. Collateral use prohibited.

Any determination, redetermination, finding of fact, conclusion of law, decision, final order, or final judgment entered or made by a claims adjudicator or other authorized representative of the Commissioner, an appeals referee, the Employment Security Board, or a court of competent jurisdiction in any type of proceeding under this chapter is binding only between the Department and all parties in that proceeding and is not binding, conclusive, or admissible in any separate or subsequent action between an individual and his or her present or former employer brought before an arbitrator, court, or judge of this State or of the United States, regardless of whether the prior proceeding was between the same or related parties or involved the same facts.

Added 1989, No. 132 (Adj. Sess.), § 7.

ANNOTATIONS

1. Applicability.

Under the statute addressing the collateral import of unemployment compensation claims proceedings, the Employment Security Board's findings and conclusions reached in denying plaintiff's claim for unemployment compensation benefits were inadmissible in, and could not bar, his defamation claim against his employer. Shaddy v. Brattleboro Retreat, 192 Vt. 215, 57 A.3d 700 (2012).

By disbursing all the funds awarded to a former employee, the Employment Security Board deprived a town employer of any financial stake in the outcome of its appeal from the Board's decision because, even if the town were to prevail, the Department of Employment and Training would exercise its authority under 21 V.S.A. § 1321(f) to collect reimbursement from the town for all the benefits "paid but denied on appeal" to the employee, and the town did not need to fear further liability as a result of the Board's decision because of the provision of this section prohibiting the collateral use of "[a]ny determination, redetermination, finding of fact, conclusion of law, decision, final order, or final judgment entered or made by . . . the employment security board" in any "separate or subsequent action"; accordingly, the town's appeal was moot for lack of any stake in its outcome. Holton v. Department of Employment and Training, 178 Vt. 147, 878 A.2d 1051 (April 1, 2005).

§§ 1354, 1355. Repealed. 1961, No. 210, § 17, eff. July 11, 1961.

History

Former §§ 1354, 1355. Former § 1354, relating to appeals to supreme court from municipal and chancery court, was derived from V.S. 1947, § 5388; 1947, No. 202 , § 10,329; and 1936, No. 1 (Sp. Sess.), § 6(i).

Former § 1355, relating to appeals to supreme court from award of board, was derived from V.S. 1947, § 5389; 1947, No. 202 , § 10,330; 1936, No. 1 (Sp. Sess.), § 6(j); and amended by 1959, No. 329 (Adj. Sess.), § 22.

§ 1356. Limitation of fees.

An individual shall not be charged fees of any kind by the Commissioner or his or her representatives, a referee, or the Board in any proceeding under this chapter. An individual claiming benefits in any such proceeding may be represented by counsel or other authorized agent; but no such counsel or agents shall together charge or receive for such services from any individual more than 10 percent of the maximum benefits at issue in such proceedings or court action, except as the Board or the court may allow in exceptional circumstances.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 14, eff. July 11, 1961; 1965, No. 75 , § 1, eff. May 26, 1965.

History

Source. V.S. 1947, § 5390. 1947, No. 202 , § 10,331. 1936, No. 1 (Sp. Sess.), § 6(k).

Amendments--1965. Designated existing provisions of section as subsec. (a), added the third sentence of that subsection and added subsec. (b).

Amendments--1961. Substituted "commissioner or his" for "board or its" preceding "representatives" and inserted "a referee or the board" thereafter in the first sentence, inserted "such" preceding "proceeding", deleted "before a referee or the board" thereafter and deleted "duly" preceding "authorized agent" in the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

Expiration of 1965 amendment. 1965, No. 75 , § 3, provided that the 1965 amendment of this section would expire July 1, 1967.

§ 1357. Notices; form and service.

Notices required under the provisions of this chapter, unless otherwise provided herein or by rules of court promulgated by the Supreme Court, shall be deemed sufficient if given in writing and delivered to the person entitled thereto by an agent of the Commissioner, or sent by ordinary or certified mail to the last address of the person appearing upon the records of the Commissioner. The manner of service shall be certified by the agent of the Commissioner making the service. Regardless of the manner of service, appeal periods shall commence to run from the date of the determination or decision rendered. In the event that a person to whom a notice has been sent files with the Commissioner within 60 days from date of said notice a sworn statement to the effect that the notice was not received, or if the Commissioner is satisfied that the addressee did not receive the notice, a new notice shall be sent to that person and the appeal period shall commence to run from the date on which the new notice is sent.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1971, No. 185 (Adj. Sess.), § 197, eff. March 29, 1972; 1987, No. 100 , § 4; 1989, No. 8 , § 9; 1991, No. 82 , § 7.

History

Source. 1955, No. 78 . V.S. 1947, § 5391. 1947, No. 202 , § 10,332. 1936, No. 1 (Sp. Sess.), § 6( l ).

Amendments--1991. Inserted "or certified" following "ordinary" in the first sentence and deleted "excepting, however, that notices required by this chapter to be given relating to hearings before or decisions of a referee or the board shall be sent by certified mail to the last address of the person appearing upon the records of the commissioner" at the end of that sentence.

Amendments--1989. Made minor changes in punctuation in the first sentence, rewrote the third sentence and added the fourth sentence.

Amendments--1987. Substituted "board" for "commissioner" following "referee or the" in the first sentence and "certified mail" for "registered mail" wherever it appeared.

Amendments--1971 (Adj. Sess.). Inserted "herein or by rules of court promulgated by the supreme court" following "provided" in the first sentence, deleted "to" following "certified" in the second sentence and made minor stylistic changes throughout the section.

Amendments--1961. Substituted "commissioner" for "board" throughout the section.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

ANNOTATIONS

1. Notice of hearing.

Where this section clearly provided for notice of proceeding by registered mail, notice by certified mail was insufficient and the plain meaning of this section could not be expanded to allow notice by certified mail. Headley v. Department of Employment Security, 139 Vt. 246, 427 A.2d 805 (1981).

Cited. Allen v. Vermont Employment Security Board, 133 Vt. 166, 333 A.2d 122 (1975); Handly v. Department of Employment Security, 135 Vt. 20, 369 A.2d 1152 (1976); Trask v. Department of Employment & Training, 170 Vt. 589, 749 A.2d 1130 (mem.) (2000).

§ 1358. Unemployment Compensation Fund; establishment and control.

There is hereby established as a special fund, to be kept separate and apart from all other public monies or funds of this State, an Unemployment Compensation Fund, which shall be administered by the Commissioner exclusively for the purposes of this chapter. This Fund shall consist of (1) all contributions collected under this chapter; (2) interest earned upon any monies in the Fund; (3) any property or securities acquired through the use of monies belonging to the Fund; (4) all earnings of such property or securities; (5) all money credited to this State's account in the Unemployment Trust Fund pursuant to section 903 of the Social Security Act as amended; and (6) all other monies received for the Fund from any other source. All monies in the Fund shall be mingled and undivided.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1967, No. 190 , § 1, eff. April 17, 1967.

History

Source. V.S. 1947, § 5392. 1947, No. 199 , § 1. 1943, No. 123 , § 7. 1936, No. 1 (Sp. Sess.), § 8(a).

Reference in text. Section 903 of the Social Security Act, referred to in this section, is codified as 42 U.S.C. § 1103.

Revision note. In the first sentence, substituted "commissioner" for "commission" to conform to prior amendment of section by 1961, No. 210 , § 15.

Amendments--1967. Substituted "Commission" for "commissioner" preceding "exclusively" in the first sentence, deleted "and" preceding "(5)" in the second sentence and inserted "all money credited to this state's account in the unemployment trust fund pursuant to section 903 of the social security act as amended; and (6)" thereafter.

Amendments--1961. Substituted "commissioner" for "board" preceding "exclusively" in the first sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "exclusively" in the first sentence.

§ 1359. Administration of Unemployment Compensation Fund.

  1. The Fund shall be administered in trust and used solely to pay benefits and refunds upon vouchers drawn on the Fund by the Commissioner pursuant to this chapter and to such rules as the Board is authorized to adopt, except that money credited to this State's account under Section 903 of the Social Security Act, as amended, shall be used exclusively as provided in subsection (b) of this section. There shall be maintained within the Fund three separate fund accounts: (1) a clearing account; (2) an Unemployment Trust Fund account; and (3) a benefit account. All monies payable to the Fund upon receipt thereof shall be immediately deposited in the clearing account, and, after clearance thereof, shall, except that the monies may be expended for the payment of refunds under this chapter, be deposited immediately with the U.S. Secretary of the Treasury to the credit of the Unemployment Trust Fund account of the State of Vermont in the Unemployment Trust Fund established and maintained pursuant to the act of Congress designated as the Social Security Act, as amended. The Commissioner shall requisition from the Vermont Unemployment Trust Fund account such amounts from time to time as are necessary for and to be used solely in the payment of benefits and refunds under this chapter. The requisitioned sums shall be deposited in the benefit account. Any monies so withdrawn shall not be used for expenses of administration or any purpose other than the payment of benefits and refunds under this chapter. Requirements with respect to specific appropriation or other formal release by State officers of monies belonging to the State shall not be applicable to withdrawals from the Fund.
  2. Money credited to the account of this State in the Unemployment Trust Fund by the Secretary of the Treasury of the United States of America under section 903 of the Social Security Act, as amended:
    1. may not be requisitioned from this State's account or used except for the payment of benefits and for the payment of expenses incurred for the administration of this chapter. Such money may be requisitioned under subsection (a) of this section for the payment of benefits.  That money may also be requisitioned and used for the payment of expenses incurred for the administration of this chapter but only under a specific appropriation by the Legislature and only if the expenses are incurred and the money is requisitioned after the enactment of an appropriation law which:
      1. specifies the purpose for which the money is appropriated and the amount appropriated therefor;
      2. limits the period within which the money may be obligated to a period ending not more than two years after the date of the enactment of the appropriation law; and
      3. limits the amount which may be obligated during any 12-month period beginning on July 1 and ending on the next June 30, including the 12-month period which began on July 1, 1968 and ends on June 30, 1969, to an amount which does not exceed the amount by which:
        1. the aggregate of the amounts credited to the account of this State under Section 903 of the Social Security Act, as amended, during the same 12-month period and the 14 preceding 12-month periods, exceeds
        2. the aggregate of the amount obligated for administration and paid out for benefits and charged against the amounts credited to the account of this State during those 15 12-month periods.
    2. which is obligated for administration or paid out for benefits shall be charged against equivalent amounts which were first credited and which are not already so charged; except that no amount obligated for administration during a 12-month period specified herein may be charged against any amount credited during such a 12-month period earlier than the 14th preceding such period.  Amounts credited to this State's account in the Unemployment Trust Fund under Section 903 of the Social Security Act, as amended, which has been appropriated for expenses of administration shall be excluded from the Unemployment Compensation Fund balance for the purposes of section 1326 of this title.
  3. Money appropriated as provided herein for the payment of expenses of administration shall be requisitioned as needed for the payment of obligations incurred under the appropriation and, upon requisition, shall be deposited in the Unemployment Compensation Administration Fund from which those payments shall be made.  Money so deposited shall, until expended, remain a part of the Unemployment Compensation Fund and, if it will not be expended, shall be returned promptly to the account of this State in the Unemployment Trust Fund.

    Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1967, No. 190 , § 2, eff. April 17, 1967; 1969, No. 77 , eff. April 18, 1969; 2015, No. 23 , § 120.

History

Source. V.S. 1947, § 5393. 1943, No. 121 , § 3. 1936, No. 1 (Sp. Sess.), § 8(b).

Reference in text. Section 903 of the Social Security Act, referred to in this section, is codified as 42 U.S.C. § 1103.

Amendments--2015 Section amended generally.

Amendments--1969. Subsection (a): Substituted "commissioner" for "commission" preceding "pursuant to" and "board" for "commission" preceding "is authorized" in the first sentence.

Subsection (b)(1)(C): Substituted "1968" for "1966" preceding "and ends on June 30" and "1969" for "1967" thereafter in the introductory clause, "fourteen" for "nine" following "and the" in subdiv. (i) and "fifteen" for "ten" following "during those" in subdiv. (ii) and made other minor stylistic changes.

Amendments--1967. Designated existing provisions of section as subsec. (a), substituted "commission" for "commissioner" preceding "pursuant to" and for "board" preceding "is authorized" in the first sentence, added "except that money credited to this state's account under section 903 of the social security act, as amended, shall be used exclusively as provided in subsection (b) of this section" at the end of that sentence and added subsecs. (b) and (c).

Amendments--1961. Substituted "commissioner" for "board" preceding "pursuant to" in the first sentence and preceding "shall requisition" in the fourth sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "pursuant to" and "is authorized" in the first sentence and preceding "shall requisition" in the fourth sentence.

§ 1360. Treasurer.

The Commissioner shall designate a treasurer of the Fund, who shall pay all vouchers duly drawn upon the Fund, in such manner as the Commissioner may prescribe. He or she shall have custody of all monies belonging to the Fund and not otherwise held or deposited or invested pursuant to this chapter. The treasurer shall give bond conditioned on the faithful performance of his or her duties as treasurer of the Fund in an amount specified by the Commissioner and approved by the Governor. All premiums upon bonds required pursuant to this section when furnished by an authorized surety company shall be paid from the Unemployment Compensation Administration Fund. The treasurer shall deposit the monies constituting the Fund, under the supervision and control of the Commissioner, according to the provisions of this chapter.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961.

History

Source. V.S. 1947, § 5394. 1936, No. 1 (Sp. Sess.), § 8(c).

Amendments--1961. Substituted "commissioner" for "board" preceding "shall designate" and preceding "may prescribe" in the first sentence, following "specified by the" in the third sentence and following "control of the" in the fifth sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "shall designate" and preceding "may prescribe" in the first sentence, following "specified by the" in the third sentence and following "control of the" in the fifth sentence.

ANNOTATIONS

1. Bond.

Bond required by this section should run to the State of Vermont, as obligee, in the penal sum specified by the Commission, must be executed by the designated treasurer of the Fund as principal and, preferably, an authorized surety company, as surety, must be conditioned on the faithful performance of the principal's duties as treasurer of the Vermont Unemployment Compensation Fund, and, after its execution, must be finally approved by the Governor. 1936-38 Op. Atty. Gen. 498.

§ 1361. Management of Funds upon discontinuance of Unemployment Trust Fund.

The provisions of sections 1358-1360 of this title to the extent that they relate to the Unemployment Trust Fund, shall be operative only so long as such Unemployment Trust Fund continues to exist and so long as the Secretary of the Treasury continues to maintain for this State a separate book account of all Funds deposited therein by this State for benefit purposes, together with this State's proportionate share of the earnings of such Unemployment Trust Fund, from which only the Commissioner of Labor is permitted to make withdrawals. If and when such Unemployment Trust Fund shall no longer be required by the laws of the United States to be maintained as aforesaid as a condition of approval of this chapter as provided in Title III of the Social Security Act, then all monies, properties, or securities therein, belonging to the Unemployment Compensation Fund of this State, shall be transferred to the treasurer of the Unemployment Compensation Fund, who shall hold, invest, transfer, sell, deposit, and release such monies, properties, or securities in a manner approved by the Commissioner and appropriate for trust funds, subject to all claims for benefits under this chapter.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1981, No. 66 , § 5(b), eff. May 1, 1981; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Source. V.S. 1947, § 5395. 1936, No. 1 (Sp. Sess.), § 8(e).

Reference in text. Title III of the Social Security Act, referred to in this section, is codified as 42 U.S.C. § 501 et seq.

Amendments--2005 (Adj. Sess.) Substituted "commissioner of labor" for "commissioner of employment and training".

Amendments--1981. Substituted "and training" for "security" following "commissioner of employment" in the first sentence.

Amendments--1961. Substituted "commissioner of employment security" for "Vermont employment security board" preceding "is permitted" in the first sentence and "commissioner" for "board" preceding "and appropriate" in the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "employment security board" for "unemployment compensation commission" preceding "is permitted" in the first sentence and "board" for "commission" preceding "and appropriate" in the second sentence.

§ 1362. Unemployment Compensation Administration Fund.

There is hereby created the Unemployment Compensation Administration Fund to consist of all monies received by the State or by the Commissioner for the administration of this chapter. This special fund shall be handled through the State Treasurer as other State monies are handled, but it shall be expended solely for the purposes and in the amounts found necessary by the Secretary of Labor for the proper and efficient administration of such chapter and its balance shall not lapse at any time but shall remain continuously available to the Commissioner for expenditures consistent herewith. All federal monies allotted or apportioned to the State by the Secretary of Labor, or other agency, for the administration of this chapter shall be paid into the Unemployment Compensation Administration Fund and are hereby appropriated to such Fund.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961.

History

Source. V.S. 1947, § 5396. 1941, No. 156 , § 1. 1936, No. 1 (Sp. Sess.), § 12(a).

Revision note. References to the "federal security board" in the second and third sentences were changed to "secretary of labor" to conform references to reorganization of federal government. Section 4 of Reorganization Plan No. 2 of 1946 abolished the social security board and transferred all of its functions to the federal security administrator. Section 1 of Reorganization Plan No. 2 of 1949 transferred the functions of the federal security administrator relating to unemployment compensation to the secretary of labor. See 42 U.S.C. § 501 et seq.

Amendments--1961. Substituted "commissioner" for "board" preceding "for the administration" in the first sentence and preceding "for expenditures" in the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "for the administration" in the first sentence and preceding "for expenditures" in the second sentence.

ANNOTATIONS

1. Outstanding cancelled checks.

Under the provisions of this section outstanding checks drawn against Title III funds and cancelled by the State Treasurer should be credited to the employment security administration fund. 1964-66 Op. Atty. Gen. 80.

§ 1362a. [Repealed.].

History

Former § 1362a. Former § 1362a, relating to the Employment Security Supplemental Fund, was derived from 1989, No. 241 (Adj. Sess.), § 2, and was repealed on June 30, 1991, pursuant to 1989, No. 241 (Adj. Sess.), § 4(b).

§ 1363. Expenditures.

All monies made available by or received by the State for the State employment service, as provided in chapter 15 of this title, shall be paid to and expended from the Unemployment Compensation Administration Fund, and a special employment service account shall be maintained for that purpose as a part of said Fund. For the purpose of establishing and maintaining free public employment offices, the Commissioner is authorized to enter into agreements with the Railroad Retirement Board or any other agency of the United States charged with the administration of an unemployment compensation law, with any political subdivision of this State or with any private, nonprofit organization, and as a part of any such agreement, the Commissioner may accept monies, services, or quarters as a contribution to the employment service account.

Amended 1959, No. 329 (Adj. Sess.). § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961.

History

Source. V.S. 1947, § 5397. 1939, No. 181 , § 18. 1936, No. 1 (Sp. Sess.), § 12(b).

Revision note. Reference to monies expended prior to 1939 was deleted as obsolete.

Amendments--1961. Substituted "commissioner" for "board" preceding "is authorized" and preceding "may accept" in the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "is authorized" and preceding "may accept" in the second sentence.

§ 1364. Replacement.

This State shall replace any monies received after July 1, 1941, from the Secretary of Labor under Title III of the Social Security Act, any unencumbered balances in the Unemployment Compensation Administration Fund as of that date, any monies thereafter granted to this State pursuant to the provisions of the Wagner-Peyser Act, and any monies made available by the State or its political subdivisions and matched by such monies granted to this State pursuant to the provisions of the Wagner-Peyser Act, which the Secretary of Labor finds after reasonable notice and opportunity for hearing to the Commissioner have, because of any action or contingency, been lost or have been expended for purposes other than, or in amounts in excess of, those found necessary by the Secretary of Labor for the proper administration of this chapter. In the event that there are insufficient funds in the Contingent Fund as provided in section 1365 of this title, such monies shall be promptly replaced by monies appropriated for such purpose from the general funds of this State to the Unemployment Compensation Administration Fund for expenditure as provided in sections 1362 and 1363 of this title. The Commissioner shall promptly report to the Governor, and the Governor to the General Assembly, the amount required for such replacement.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961.

History

Source. V.S. 1947, § 5398. 1947, No. 199 , § 2. 1941, No. 156 , § 2.

Reference in text. Title III of the Social Security Act, referred to in the first sentence, is codified as 42 U.S.C. § 501 et seq.

The Wagner-Peyser Act, referred to in the first sentence, is codified as 29 U.S.C. § 49 et seq.

Revision note. References to the "Social Security Board" in the first sentence were changed to "Secretary of Labor" to conform references to reorganization of federal government. Section 4 of Reorganization Plan No. 2 of 1946 abolished the social security board and transferred all of its functions to the federal security administrator. Section 1 of Reorganization Plan No. 2 of 1949 transferred the functions of the federal security administrator relating to unemployment compensation to the secretary of labor. See 42 U.S.C. § 501 et seq.

In the second sentence, substituted "section 1365 of this title" for "the following section" to conform reference to V.S.A. style.

Amendments--1961. Substituted "commissioner" for "board" following "hearing to the" in the first sentence and preceding "shall promptly" in the third sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "hearing to the" in the first sentence and preceding "shall promptly" in the third sentence.

§ 1365. Contingent Fund.

There is hereby created a special fund to be known as the Contingent Fund. All interest, fines, and penalties collected under the provisions of the unemployment compensation law after April 1, 1947, together with any voluntary contributions tendered as a contribution to this Fund, shall be paid into this Fund. Such monies shall not be expended or available for expenditures in any manner which would permit their substitution for, or a corresponding reduction in, federal funds which would in the absence of such monies be available to finance expenditures for the administration of the unemployment compensation law. But nothing in this chapter shall prevent such monies from being used as a revolving fund to cover expenditures, necessary and proper under the law for which federal funds have been duly requested but not yet received, subject to the charging of such expenditures against such funds when received. The monies in this Fund shall be used by the Commissioner for the payment of costs of administration which are found not to have been properly and validly chargeable against federal grants, or other funds, received for or in the Unemployment Compensation Administration Fund on or after January 1, 1947. No expenditure of the Fund shall be made unless and until the Commissioner finds that no other funds are available or can properly be used to finance such expenditures. The State Treasurer shall co-sign all expenditures from this Fund authorized by the Commissioner. The monies in this Fund are hereby specifically made available to replace, within a reasonable time, any monies received by this State pursuant to section 302 of the federal Social Security Act, as amended, which because of any action or contingency, have been lost or have been expended for purposes other than, or in amounts in excess of, those necessary for the proper administration of the unemployment compensation law. The monies in this Fund shall be continuously available to the Commissioner for expenditure in accordance with the provisions of this section and shall not lapse at any time or be transferred to any other fund except as herein provided. Provided, however, that on December 31 of each year all monies in excess of $10,000.00 in this Fund shall be transferred to the Unemployment Compensation Fund. On or before March 31 of each year, an audit of this Fund will be completed and a report of that audit will be made public. In the event that a refund of interest, a fine, or a penalty is found necessary, and such interest, fine, or penalty has been deposited in the Contingent Fund, such refund shall be made from the Contingent Fund.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961; 1983, No. 16 , § 8, eff. April 4, 1983; 1985, No. 121 (Adj. Sess.), § 2, eff. April 16, 1986.

History

Source. V.S. 1947, § 5399. 1947, No. 199 , § 3.

Reference in text. Section 302 of the Social Security Act, referred to in this section, is codified as 42 U.S.C. § 502.

Section 1202 of the Social Security Act, referred to in this section, is codified as 42 U.S.C. § 1322.

Title XII of the Social Security Act, referred to in this section, is codified as 42 U.S.C. § 1321 et seq.

2005. Eliminated the next to last sentence in the section that read "Except that the commissioner may refrain from transferring such monies to the unemployment compensation fund for so long as monies are required to pay any interest incurred pursuant to section 1202(b) of the Social Security Act, as amended, on advances made to the unemployment compensation fund pursuant to Title XII of the Social Security Act." which was repealed by 1985, No. 121 (Adj. Sess.) § 2.

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1983. Added language beginning "except that the commissioner may refrain" following "compensation fund" in the fourteenth sentence.

Amendments--1961. Substituted "commissioner" for "board" throughout the section.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" throughout the section.

ANNOTATIONS

Cited. , 1948-50 Op. Atty. Gen. 238.

§ 1366. Protection of rights and benefits; waiver of rights void.

No agreement by an employee to waive his or her right to benefit or any other right under this chapter shall be valid.

History

Source. V.S. 1947, § 5400. 1947, No. 202 , § 10,340. 1936, No. 1 (Sp. Sess.), § 15(a).

Cross References

Cross references. Child support intercept of unemployment benefits, see § 1367a of this title.

§ 1367. Benefits not subject to assignment or trustee process.

Benefits which are due or may become due under this chapter shall not be assignable before payment, but this provision shall not affect the survival thereof; and when awarded, adjudged, or paid shall be exempt from all claims of creditors, and from levy, execution, attachment, and trustee process or other remedy now or hereafter provided for recovery or collection of debt. This exemption may not be waived.

History

Source. V.S. 1947, § 5401. 1936, No. 1 (Sp. Sess.), § 15(b).

Cross References

Cross references. Child support intercept of unemployment benefits, see § 1367a of this title.

§ 1367a. Child support intercept of unemployment benefits.

  1. An individual filing a new claim for unemployment compensation shall, at the time of filing such claim, disclose whether or not the individual owes child support obligations as defined under subsection (f) of this section.  If any such individual discloses that he or she owes child support obligations and is determined to be eligible for unemployment compensation, the Commissioner shall notify the state or local child support enforcement agency enforcing such obligation that the individual has been determined to be eligible for unemployment compensation.
  2. Notwithstanding the provisions of sections 1366 and 1367 of this title, the Commissioner shall deduct and withhold from any unemployment compensation payable to an individual who owes child support obligations as defined under subsection (f) of this section:
    1. the amount specified by the individual to the Commissioner to be deducted and withheld under this subsection if neither subdivision (2) nor (3) of this subsection is applicable; or
    2. the amount (if any) determined pursuant to an agreement submitted to the Commissioner under Section 454(20)(B)(i) of the Social Security Act by the state or local child support enforcement agency, unless subdivision (3) of this subsection is applicable; or
    3. any amount otherwise required to be so deducted and withheld from such unemployment compensation pursuant to legal process (as that term is defined in Section 462(e) of the Social Security Act) properly served upon the Commissioner.
  3. Any amount deducted and withheld under subsection (b) of this section shall be paid by the Commissioner to the appropriate state or local child support enforcement agency.
  4. Any amount deducted and withheld under subsection (b) of this section shall for all purposes be treated as if it were paid to the individual as unemployment compensation and paid by such individual to the state or local child support enforcement agency in satisfaction of the individual's child support obligations.
  5. For purposes of this section, the term "unemployment compensation" means any compensation payable under the state law (including amounts payable by the commissioner pursuant to an agreement under any federal law providing for compensation, assistance, or allowances with respect to unemployment).
  6. The term "child support obligations" is defined for purposes of these provisions as including only obligations which are being enforced pursuant to a plan described in Section 454 of the Social Security Act which has been approved by the Secretary of Health and Human Services under part D of Title IV of the Social Security Act.
  7. The term "state or local child support enforcement agency" as used in this section means any agency of a state or political subdivision thereof operating pursuant to a plan described in subsection (f) of this section.
  8. The Commissioner shall implement the provisions of this section only if appropriate arrangements have been made for full reimbursement by the state or local child support enforcement agency for all administrative costs incurred by the Commissioner under this section which are attributable to child support obligations being enforced by the state or local child support enforcement agency.

    Added 1981, No. 194 (Adj. Sess.), § 4, eff. Sept. 26, 1982.

History

Reference in text. Section 454 of the Social Security Act, referred to in subdiv. (b)(2) and subsec. (f), is codified as 42 U.S.C. § 654.

Section 462 of the Social Security Act, referred to in subdiv. (b)(3), is codified as 42 U.S.C. § 662.

Part D of Title IV of the Social Security Act, referred to in subsec. (f), is codified as 42 U.S.C. § 651 et seq.

Revision note. In subdiv. (b)(1), substituted "subdivision (b)(2) nor (b)(3)" for "(2) nor (3)" to conform references to V.S.A. style.

In subdiv. (b)(2), substituted "subdivision (b)(3) of this section" for "(3)" to conform reference to V.S.A. style.

Cross References

Cross references. Child support enforcement, see 15 V.S.A. § 780 et seq.

§ 1367b. Supplemental Nutrition Assistance Program intercept of unemployment benefits.

  1. An individual filing a new claim for unemployment compensation shall, at the time of filing such claim, disclose whether he or she owes an uncollected overissuance of Supplemental Nutrition Assistance Program benefits as defined in 7 U.S.C. § 2022(c) (1). The Commissioner shall notify the State agency administering the Supplemental Nutrition Assistance Program enforcing such obligation of any individual who discloses that he or she owes an uncollected overissuance of Supplemental Nutrition Assistance Program benefits and who is determined to be eligible for unemployment compensation.
  2. Notwithstanding the provisions of sections 1366 and 1367 of this title, the Commissioner shall deduct and withhold from any unemployment compensation payable to an individual who owes an uncollected overissuance of Supplemental Nutrition Assistance Program Benefits:
    1. the amount specified by the individual to the Commissioner to be deducted and withheld under this section;
    2. the amount, if any, determined pursuant to an agreement submitted to the State agency administering the Supplemental Nutrition Assistance Program under 7 U.S.C. § 2022(c) (3)(A); or
    3. any amount otherwise required to be deducted and withheld from unemployment compensation pursuant to 7 U.S.C. § 2022(c) (3)(B).
  3. Any amount deducted and withheld under subsection (b) of this section shall be paid by the Commissioner to the appropriate State agency administering the Supplemental Nutrition Assistance Program.
  4. Any amount deducted and withheld under subsection (b) of this section shall for all purposes be treated as if it were paid to the individual as unemployment compensation and paid by such individual to the State agency administering the Supplemental Nutrition Assistance Program as repayment of the individual's uncollected overissuance of Supplemental Nutrition Assistance Program benefits.
  5. As used in this section, the term "unemployment compensation" means any compensation payable under this chapter and any federal benefit payments made pursuant to agreements with the U.S. Department of Labor.
  6. This section applies only if arrangements have been made for reimbursement by the State agency administering the Supplemental Nutrition Assistance Program for the administrative costs incurred by the Commissioner under this section which are attributable to the repayment of uncollected overissuances of Supplemental Nutrition Assistance Program benefits to the State agency administering the Supplemental Nutrition Assistance Program.
  7. Any deduction and withholding authorized by this section shall not exceed 25 percent of the individual's weekly benefit amount.

    Added 1997, No. 101 (Adj. Sess.), § 5; amended 2013, No. 131 (Adj. Sess.), § 126, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Section amended generally.

§ 1368. False statements to increase payments.

A person shall not willfully and intentionally make a false statement or representation to obtain or increase any benefit or other payment under this chapter, either for himself, herself, or any other person.

History

Source. V.S. 1947, § 5402. 1947, No. 202 , § 10,342. 1936, No. 1 (Sp. Sess.), § 16(a).

Cross References

Cross references. Nondisclosure or misrepresentation, see § 1347 of this title.

§ 1369. False statements to avoid unemployment program obligations.

A person who willfully makes a material false statement or representation to avoid becoming or remaining subject to this chapter, or to avoid or reduce a contribution or other payment required of an employer under this chapter for either herself or himself or for any other person, after notice and opportunity for hearing, may be assessed an administrative penalty of not more than $5,000.00.

Amended 2009, No. 142 (Adj. Sess.), § 11.

History

Source. V.S. 1947, § 5403. 1947, No. 202 , § 10,343. 1936, No. 1 (Sp. Sess.), § 16(b).

Amendments--2009 (Adj. Sess.) Amended section generally.

§ 1370. Furnishing reports.

A person shall not willfully fail or refuse to furnish any reports duly required under this chapter or to submit his or her records to inspection when duly required under this chapter, or to make or require any deduction from wages to pay all or any portion of the contributions required from employers.

History

Source. V.S. 1947, § 5404. 1947, No. 202 , § 10,344. 1936, No. 1 (Sp. Sess.), § 16(b).

§ 1371. Each statement separate offense.

Each such false statement or representation, and each day of such failure or refusal and each such deduction from wages as provided in this section and sections 1369 and 1370 of this title shall constitute a separate and distinct offense.

History

Source. V.S. 1947, § 5405. 1947, No. 202 , § 10,345. 1936, No. 1 (Sp. Sess.), § 16(a), (b).

§ 1372. Violation by corporate agent.

If the employer in question is a corporation, any official or agent thereof responsible for such falsehood, failure, or refusal mentioned in sections 1369-1371 of this title shall be subject to the penalties provided in section 1373 of this title.

History

Source. V.S. 1947, § 5406. 1947, No. 202 , § 10,346. 1936, No. 1 (Sp. Sess.), § 16(b).

§ 1373. General penalty; civil.

A person who violates a provision of this chapter or any lawful rule or regulation of the Board, for which no other penalty is provided, shall be assessed an administrative penalty of not more than $5,000.00.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 2009, No. 142 (Adj. Sess.), § 12.

History

Source. V.S. 1947, § 5407. 1947, No. 202 , § 10,347. 1936, No. 1 (Sp. Sess.), § 16(c).

Revision note. Deleted "in the county jail" following "imprisoned" pursuant to 1971, No. 199 (Adj. Sess.), § 17.

Amendments--2009 (Adj. Sess.) Added "civil" following "penalty" in the section catchline, and substituted "assessed an administrative penalty of" for "fined" and "$5,000.00" for "$50.00 or be imprisoned not more than 30 days, or both".

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "regulation of the".

§ 1374. Representation in court.

The Attorney General shall represent the Commissioner and State in any court action relating to this chapter or to its administration and enforcement, except as other counsel may be designated by the Commissioner with the approval of the Attorney General; provided however, in prosecutions under this chapter the State's Attorney of the county wherein such offense occurs shall represent the State as in other causes.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961.

History

Source. 1951, No. 116 . V.S. 1947, § 5408. 1936, No. 1 (Sp. Sess.), § 17.

Amendments--1961. Substituted "commissioner" for "board" following "represent the" and following "designated by the".

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" following "represent the" and following "designated by the".

ANNOTATIONS

Analysis

1. Criminal prosecutions.

This section relates particularly to civil and special actions in which Commission or State, or both, are parties in interest and is not intended in any way to countermand or decrease general authority of State's Attorney of a county to prosecute for criminal offenses under the unemployment compensation acts which may occur in his county. 1948-50 Op. Atty. Gen. 246.

2. Other counsel.

Counsel other than the Attorney General appointed under this section is not empowered to file complaints or informations or institute criminal process against an alleged violator, unless such person also has the authority of a prosecuting officer. 1948-50 Op. Atty. Gen. 246.

§ 1375. Jurisdiction.

Concurrent jurisdiction of offenses under this chapter is vested in the Superior Court.

Amended 1965, No. 194 , § 10; 1973, No. 193 (Adj. Sess.), § 3.

History

Source. V.S. 1947, § 5409. 1947, No. 202 , § 10,349. 1936, No. 1 (Sp. Sess.), § 16(d).

2016. Substituted "the Superior Court" for "District and Superior Courts" in accordance with 2009, No. 154 (Adj. Sess.) § 236.

Amendments--1973 (Adj. Sess.). Substituted "Superior" for "county" preceding "courts".

Amendments--1965. Substituted "District" for "municipal" following "vested in".

Effective and operative dates of 1965 amendment. 1965, No. 194 , § 18, provided that the act was to become effective July 1, 1965, but that section 10 of the act, which amended this section, was not to become operative until February 1, 1967.

§ 1376. Limitation of liability of State.

Benefits shall be deemed to be due and payable under this chapter only to the extent provided in this chapter and to the extent that monies are available therefor to the credit of the Unemployment Compensation Fund. Neither the State nor the Commissioner shall be liable for any amount in excess of such sums.

Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961.

History

Source. V.S. 1947, § 5410. 1936, No. 1 (Sp. Sess.), § 18.

Amendments--1961. Substituted "commissioner" for "board" preceding "shall be liable" in the second sentence.

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "shall be liable" in the second sentence.

§ 1377. Rights hereunder subject to legislative control.

All the rights, privileges, or immunities conferred by this chapter or by acts done pursuant hereto shall exist subject to the power of the General Assembly to amend or repeal this chapter at any time; and there shall be no vested rights of any kind against such amendment or repeal or the termination of this chapter or the subdivisions of any of its provisions by its own terms.

History

Source. V.S. 1947, § 5411. 1936, No. 1 (Sp. Sess.), § 19.

§ 1378. Requirements for obtaining license or governmental contract.

  1. For purposes of this section, "agency" means any unit of State government, including agencies, departments, boards, commissions, authorities, or public corporations.
  2. [Repealed.]
  3. Every agency shall, upon request, furnish to the Commissioner a list of licenses and contracts issued or renewed by such agency during the reporting period; provided, however, that the Secretary of State shall, with respect to certificates of authority to transact business issued to foreign corporations, furnish to the Commissioner only those certificates originally issued by the Secretary of State during the reporting period and not renewals of such certificates. The lists should include the name, address, Social Security or federal identification number of such licensee or provider, and such other information as the Commissioner may require.
  4. If the Commissioner determines that any employing unit that has agreed to furnish goods, services, or real estate space to any agency has neglected or refused to pay contributions or payments in lieu of contributions and that the employing unit's liability for such contributions or payments in lieu of contributions is not under appeal, the Commissioner shall notify the agency and the employing unit in writing of the amount owed by such employing unit. Upon receipt of such notice, the agency shall thereafter transfer to the Commissioner any amounts that would otherwise be payable by the agency to the employing unit, up to the amount certified by the Commissioner. The Commissioner may treat any such payment as if it were a payment received from the employing unit.
  5. No agency of the State shall make final payment of any amount owed under a contract that contemplates the employment of any employing unit within the State or the use of any property within the State, or otherwise release any employing unit from the obligations of any such contract, unless such employing unit shall first obtain a certificate issued by the Commissioner that the employing unit is in good standing with respect to or in full compliance with a plan to pay any and all contributions or payments in lieu of contributions due as of the date of issuance of the certificate.
  6. Upon written request by the Commissioner and after notice and hearing to the employing unit as required under any applicable provision of law, an agency shall revoke or suspend any license or other authority to conduct a trade or business (including a license to practice a profession) issued to any employing unit if the agency finds that contributions or payments in lieu of contributions have not been paid and the employing unit's liability for contributions or payments in lieu of contributions is not under appeal. For purposes of such findings, the written representation to that effect by the Commissioner to the agency shall constitute prima facie evidence thereof. The Commissioner shall have the right to intervene in any hearing conducted with respect to such license revocation or suspension. Any findings made by the agency with respect to such license revocation or suspension shall be made only for the purposes of such proceeding and shall not be relevant to or introduced in any other proceeding at law, except for any appeal from such license revocation or suspension. Any license or certificate of authority suspended or revoked under this section shall not be reissued or renewed until the agency receives a certificate issued by the Commissioner that the applicable employing unit is in good standing with respect to any and all contributions or payments in lieu of contributions payable to the Commissioner as of the date of issuance of such certificate. Any person aggrieved by the decision of the agency may appeal therefrom in accordance with the provisions of 3 V.S.A. chapter 25.
    1. For the purposes of this section, a person is in good standing with respect to any and all contributions or payments in lieu of contributions payable if: (g) (1)  For the purposes of this section, a person is in good standing with respect to any and all contributions or payments in lieu of contributions payable if:
      1. no contributions or payments in lieu of contributions are due and payable;
      2. the liability for any contributions or payments in lieu of contributions due and payable is on appeal;
      3. the employing unit is in compliance with a payment plan approved by the Commissioner; or
      4. in the case of a licensee, the agency finds that requiring immediate payment of contributions or payments in lieu of contributions due and payable would impose an unreasonable hardship.
    2. If the agency finds an unreasonable hardship, it may condition renewal on terms that will place the person in good standing with respect to any and all contributions or payments in lieu of contributions as soon as reasonably possible.

      Added 1993, No. 177 (Adj. Sess.), § 8; amended 2009, No. 42 , §§ 33b, 33c; 2017, No. 74 , § 54.

History

Amendments--2017. Added the subdiv. designations for (g)(1) and (g)(2); and redesignated former subdivs. (g)(1)-(g)(4) as (g)(1)(A)-(g)(1)(D), respectively.

Amendments--2009. Subsec. (b): Repealed

Subsec. (c): Substituted "upon request" for "at least annually" in the first sentence.

§ 1379. Complaint of misclassification; enforcement by Attorney General. Section 1379 repealed effective July 1, 2026.

  1. Following the referral of a complaint by the Commissioner of Labor pursuant to the provisions of section 3 of this title, the Attorney General may investigate a complaint that an employing unit or employer has committed a willful, substantial, or systemic violation of section 1314a of this chapter by failing to properly classify one or more employees and may enforce the provisions of this chapter by restraining prohibited acts, seeking civil penalties, obtaining assurances of discontinuance, and conducting civil investigations in accordance with the procedures established in 9 V.S.A. §§ 2458 -2461 as though the misclassification of an employee is an unfair act in commerce. Any employing unit or employer complained against shall have the same rights and remedies as specified in 9 V.S.A. §§ 2458 -2461. The Superior Court may impose the same civil penalties and investigation costs and order other relief to the State of Vermont or an aggrieved employee for the misclassification of an employee and any related violations of the provisions of this chapter as they are authorized to impose or order under the provisions of 9 V.S.A. §§ 2458 and 2461 in an unfair act in commerce. In addition, the Superior Court may order restitution of wages or other benefits on behalf of an employee and may order reinstatement and other appropriate relief on behalf of an employee.
    1. The Attorney General shall share information and coordinate investigatory and enforcement resources with the Departments of Financial Regulation, of Labor, and of Taxes pursuant to the provisions of section 3 of this title. (b) (1)  The Attorney General shall share information and coordinate investigatory and enforcement resources with the Departments of Financial Regulation, of Labor, and of Taxes pursuant to the provisions of section 3 of this title.
    2. Upon receiving notice that the Attorney General has determined that an employing unit or employer has committed a violation of section 1314a of this chapter by failing to properly classify one or more employees, the Commissioners of Financial Regulation and of Taxes shall review whether the employing unit or employer is in compliance with the insurance or tax laws that are under their jurisdiction.

      Added 2019, No. 85 (Adj. Sess.), § 2, eff. Feb. 20, 2020; repealed on July 1, 2026 by 2019, No. 85 (Adj. Sess.), § 11(b).

History

Prior law. Former § 1379, relating to exclusion of certain employments, was derived from 1957, No. 105 , § 3 and amended by 1959, No. 329 (Adj. Sess.), § 22 and 1961, No. 210 , § 15 and was repealed by 1977, No. 64 , § 25(a), eff. Jan. 1, 1978.

§ 1380. Repealed. 1977, No. 64, § 25(a), eff. Jan. 1, 1978.

History

Former § 1380. Former § 1380, relating to exemption from contribution requirements, was derived from 1957, No. 105 , § 4; and amended by 1959, No. 329 (Adj. Sess.), § 22 and 1961, No. 210 , § 15.

§ 1381. Repealed. 1987, No. 100, § 5.

History

Former § 1381. Former § 1381, relating to public employer accounts, was derived from 1957, No. 105 , § 5; and amended by 1959, No. 329 (Adj. Sess.), § 22 and 1961, No. 210 , § 15.

§ 1382. Repealed. 1977, No. 64, § 25(a), eff. Jan. 1, 1978.

History

Former § 1382. Former § 1382, relating to financing of benefits, was derived from 1957, No. 105 , § 6.

§ 1383. Severability of provisions.

It is hereby declared to be the purpose and intention of the General Assembly that the provisions of this chapter are severable and that the invalidity or ineffectiveness of any provision or provisions of such chapter shall not affect the validity or operative force of the remainder of the chapter except only that it is the legislative intent that the whole chapter shall fail if any one or more of the following and only of the following provisions, are finally determined to be invalid and ineffective:

  1. the exaction of contributions from employers as provided in sections 1321-1327 of this title;
  2. the requirement contained in section 1359 of this title providing for the deposit with the Secretary of the Treasury of the United States of all monies received in the Unemployment Fund and the use of monies requisitioned from the Secretary of the Treasury;
  3. the provisions of subdivision 1344 (a)(2)(C)-(E) of section 1344 of this title relating to the denial of compensation upon refusal to accept new work under certain circumstances;
  4. the provisions of section 1377 of this title barring vested rights under this chapter;
  5. the provisions of sections 1386-1388 of this title with respect to suspension or termination of operation of this chapter or parts thereof in the event of modification or invalidity of the Act of Congress designated as the Social Security Act.

History

Source. V.S. 1947, § 5412. 1936, No. 1 (Sp. Sess.), § 20.

Reference in text. 21 V.S.A. § 1321a, referred to in subdiv. (a) in the phrase "section 1321-1327 of this title" was repealed by 1989, No. 241 (Adj. Sess.), § 4(b).

The Social Security Act, referred to in subdiv. (5), is codified as 42 U.S.C. § 301 et seq.

Revision note. In subdiv. (3), substituted "subdivision (a)(2)(C)-(E) of section 1344 of this title" for "subdivision (3) of section 1344 of this title" to conform reference to section 1344, as amended.

§ 1384. Construction.

This chapter is declared to be enacted in correlation with Titles III and IX of the Act of Congress approved August 14, 1935, designated as the Social Security Act, and with the Federal Unemployment Tax Act, and the expediency of certain provisions of this chapter depend as hereinafter set forth upon the scope and operation within this State of the provisions of said titles and of said act as originally enacted or as hereafter amended. If the Federal Unemployment Tax Act shall be interpreted or extended to impose within this State a tax with respect to employing units having in their employ less than four persons, or with respect to employing units having in their employ individuals who are not now in "employment" as defined in subdivision 1301(6)(C) of this title the Governor by proclamation within 10 days of the effective date of said extension shall so declare and thereupon and thereafter the word "employer" and the words "individual in employment," as used in this chapter shall extend to and include in the first instance all employing units having in their employ such smaller number of persons and the individuals in their employ, and in the second instance all employing units having in their employ individuals who thereafter shall be in "employment" and the individuals in their employ. Said persons shall be treated as individuals in the employ of said employer with respect to contributions and eligibility for benefits under this chapter.

History

Source. V.S. 1947, § 5413. 1941, No. 148 , § 5(a). 1939, No. 180 , § 6. 1936, No. 1 (Sp. Sess.), § 21(a).

Reference in text. Title III of Social Security Act, referred to in this section, is codified as 42 U.S.C. § 501 et seq.

Title IX of the Social Security Act, referred to in this section, is codified as 42 U.S.C. § 1101 et seq.

The Federal Unemployment Tax Act, referred to in this section, is codified as 26 U.S.C. § 3301 et seq.

2009. Substituted "subdivision (6)(C)" for "subdivision (10)(C)" to correct the reference to correspond to § 1301 of this title.

In the second sentence, "less than eight persons" was changed to "less than four persons" to correspond to the amendment to § 1301(5) of this title by 1951, No. 119 and the reference to subdiv. (6)(C), pars. (i) to (x) was changed to refer to all of subdiv. (6)(C) of § 1301 of this title in view of the additional paragraphs added by amendments.

Editor's note. The Federal Unemployment Tax Act has been amended to impose a tax on employers having in their employ less than four persons. See 26 U.S.C. §§ 3301, 3306(a).

§ 1385. Contingent provisions.

If the Federal Unemployment Tax Act has been or shall be amended, interpreted, or extended so that employing units not heretofore included under the definition of "employer," as that term is used in this chapter, are included under such definition after said Act of Congress is so amended, interpreted, or extended, then, subject to other provisions of this chapter benefits shall become payable to any individual on the basis of wages earned in the employ of such newly defined employer, and such wages shall be available to any individual for determining his or her eligibility for benefits after the effective date of such extension, or after the date when such newly defined employer's approved election to be so defined shall have made him or her subject to this chapter, and the benefit year of such individual shall have begun subsequent to the date such newly defined employer became subject to this chapter.

History

Source. 1955, No. 59 , § 4. V.S. 1947, § 5414. 1939, No. 180 , § 7.

Reference in text. The Federal Unemployment Tax Act, referred to in this section, is codified as 26 U.S.C. § 3301 et seq.

§ 1386. Operation dependent upon federal act.

It is hereby declared to be the legislative judgment that the expediency and beneficial operation of this chapter are dependent upon the effective operation within this State of certain sections of the Federal Unemployment Tax Act, and amendments thereto: (1) section 3301 of said Act imposing an excise tax upon employers as defined in said Act; (2) section 3302 allowing against said tax credits for contributions exacted of employers for an unemployment fund whether or not exacted in full of the particular taxpayer under certain circumstances; (3) section 3303 prescribing the conditions upon which said credits may be allowed in addition to actual payments by said taxpayer; (4) sections 3303 and 3304 requiring the certification for the purpose of said credits of state law and prescribing the conditions precedent of such certification. If any of said sections shall be repealed, amended, suspended, or finally declared invalid so as to deprive a contributor under this act of credits against the excise tax against him or her under said section 3301 of the Federal Unemployment Tax Act, then any contribution required by this chapter, to the extent that by reason of said repeal, amendment, suspension, or declared invalidity of said federal act, a contributor is deprived of the benefit of such credit, shall be suspended as provided in section 1387 of this title.

History

Source. V.S. 1947, § 5415. 1941, No. 148 , § 6. 1937, No. 171 , § 11. 1936, No. 1 (Sp. Sess.), § 22(a).

Reference in text. The Federal Unemployment Tax Act, referred to in this section, is codified as 26 U.S.C. § 3301 et seq.

Revision note. References to §§ 1600, 1601, 1602 and 1603 were changed to §§ 3302, 3303 and 3304, respectively, the latter being sections in the Internal Revenue Code of 1986, equivalent to the former sections which were part of the Internal Revenue Code of 1939.

At the end of the section, substituted "as provided in section 1387 of this title" for "as hereinafter provided" to conform reference to V.S.A. style.

§ 1387. Suspension of contributions.

Whenever the Governor shall determine that the conditions of suspension of the contributions required by this chapter, as hereinbefore defined, exist by reason of any repeal, amendment, suspension, or declared invalidity of the federal Social Security Act or the Federal Unemployment Tax Act, he or she shall so declare by proclamation and thereupon the suspension hereinbefore provided shall become effective and continue for a period of two years from said date, subject to such legislative amendment, modification, or repeal as may be enacted within said period.

History

Source. V.S. 1947, § 5416. 1941, No. 148 , § 6. 1936, No. 1 (Sp. Sess.), § 22(b).

Reference in text. The federal Social Security Act, referred to in this section, is codified as 42 U.S.C. § 301 et seq.

The Federal Unemployment Tax Act, referred to in this section, is codified as 26 U.S.C. § 3301 et seq.

§ 1388. Invalidity of acts.

If the federal Social Security Act or the Federal Unemployment Tax Act shall be finally held and determined to be wholly invalid or shall be repealed, then this chapter shall become wholly inoperative and ineffective except only that thereafter the Commissioner shall continue in office for the purpose of:

  1. recovering any monies on deposit with the Secretary of the Treasury of the United States and the redistribution to contributors of all monies on hand in proportion to contributions received, said redistribution to be under the direction of a presiding judge of a Superior Court upon an action brought by the Commissioner against five or more employers; and
  2. doing any other act or thing necessary or proper to liquidate assets and discharge obligations of the office.

    Amended 1959, No. 329 (Adj. Sess.), § 22, eff. March 1, 1961; 1961, No. 210 , § 15, eff. July 11, 1961.

History

Source. V.S. 1947, § 5417. 1941, No. 148 , § 6. 1936, No. 1 (Sp. Sess.), § 22(c).

Reference in text. The federal Social Security Act , referred to in this section, is codified as 42 U.S.C. § 301 et seq.

The Federal Unemployment Tax Act, referred to in this section, is codified as 26 U.S.C. § 3301 et seq.

Revision note. Reference to "court of chancery" changed to "presiding judge of a superior court" pursuant to 1971, No. 185 (Adj. Sess.), § 236(d) and 1973, No. 193 (Adj. Sess.), § 3. See notes set out under §§ 71 and 219 of Title 4.

Substituted "an action" for "a bill in equity" to conform language to Rule 2, Vermont Rules of Civil Procedure, pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

At the end of the section substituted "assets and discharge obligations of the office" for "its assets and discharge its obligations" in light of changes made by 1961, No. 210 , § 15.

Amendments--1961. Substituted "commissioner" for "board" preceding "shall continue" and preceding "against five".

Amendments--1959 (Adj. Sess.). Substituted "board" for "commission" preceding "shall continue" and preceding "against five".

§ 1389. Repealed. 1977, No. 25(a), eff. Jan. 1, 1978.

History

Former § 1389. Former § 1389, relating to elective coverage by political subdivision, was derived from 1971, No. 77 , § 7.

Subchapter 2. Extended Benefits Program

ANNOTATIONS

Cited. Jones v. Department of Employment Security, 140 Vt. 552, 442 A.2d 463 (1982).

§ 1421. Definitions.

The following words and phrases, as used in this subchapter, shall have the following meanings unless the context clearly requires otherwise:

  1. "Extended benefit period" means a period which:
    1. begins with the third week after a week for which there is a State "on" indicator; and
    2. ends with either of the following weeks, whichever occurs later:
      1. the third week after the first week for which there is a State "off" indicator; or
      2. the 13th consecutive week of such period;
        1. However, no extended benefit period may begin by reason of a State "on" indicator before the 14th  week following the end of a prior extended benefit period which was in effect with respect to this State.
  2. State "on" indicator.
    1. There is a State "on" indicator for a week beginning after September 25, 1982 and before March 7, 1993, if the Commissioner determines, in accordance with the regulations of the Secretary of Labor of the United States, that, for the period consisting of such week and the immediately preceding 12 weeks, the rate of insured unemployment, not seasonally adjusted, under this chapter:
      1. equaled or exceeded six percent; or
      2. equaled or exceeded five percent and equaled or exceeded 120 percent of the average of those rates for the corresponding 13-week period ending in each of the two preceding calendar years.
    2. There is a State "on" indicator for a week beginning after March 6, 1993, if:
      1. The requirements of either subdivision (A)(i) or (ii) of this subdivision (2) are satisfied; or
      2. The average rate of total unemployment in this State (seasonally adjusted) for the period consisting of the most recent three months for which data for all states are published before the close of such week:
        1. equaled or exceeded 6.5 percent; and
        2. equaled or exceeded 110 percent of such average rate for either (or both) of the corresponding three-month periods ending in the two preceding calendar years.
  3. State "off" indicator.
    1. There is a State "off" indicator for a week beginning after September 25, 1982 and before March 7, 1993, if the Commissioner determines, in accordance with the regulations of the Secretary of Labor of the United States, that, for the period consisting of that week and the immediately preceding 12 weeks, the rate of insured unemployment, not seasonally adjusted, under this chapter was:
      1. less than five percent; or
      2. less than six percent and less than 120 percent of the average of those rates for the corresponding 13-week period ending in each of the preceding two calendar years.
    2. There is a State "off" indicator for a week beginning after March 6, 1993, if there would be a State "off" indicator pursuant to subdivision (3)(A) of this section and the requirements of either subdivision (2)(B)(ii)(I) or (II) of this section are not satisfied.
  4. "Rate of insured unemployment" and "rate of total unemployment."
    1. "Rate of insured unemployment," for purposes of subdivisions (2)(A) and (3)(A) of this section, means the percentage derived by dividing the average weekly number of individuals filing claims for regular benefits in this State for weeks of unemployment with respect to the most recent 13-consecutive-week period, as determined by the Commissioner on the basis of his or her reports to the Secretary of Labor of the United States, by the average monthly employment covered under this chapter for the first four of the most recent six completed calendar quarters ending before the end of the 13-week period.
    2. For purposes of subdivisions (2)(B) and (3)(B) of this section, determinations of the "rate of total unemployment" in this State for any period (and of any seasonal adjustment) shall be made by the Secretary of Labor of the United States.
  5. "Regular benefits" mean benefits payable to an individual under this chapter or under any other State law, including benefits payable to federal civilian employees and to ex-servicemen pursuant to chapter 85 of Title 5 of the U.S. Code, other than extended benefits.
  6. "Extended benefits" mean benefits, including benefits payable to federal civilian employees and to ex-servicemen pursuant to chapter 85 of Title 5 of the U.S. Code, payable to an individual under the provisions of this section for weeks of unemployment in his or her eligibility period.
  7. "Eligibility period" of an individual means the period consisting of weeks in his or her benefit year which begin in an extended benefit period and, if his or her benefit year ends within the extended benefit period, any weeks thereafter which begin in that period.
  8. "Exhaustee" means an individual who, with respect to any week of unemployment in his or her eligibility period:
    1. has received, prior to such week, all of the regular benefits that were available to him or her under this chapter or any other state law, including dependent's allowances and benefits payable to federal civilian employees and ex-servicemen under chapter 85 of Title 5 of the U.S. Code, in his or her current benefit year that includes the week; provided that, for the purposes of this subdivision, an individual shall be deemed to have received all of the regular benefits that were available to him or her although as a result of a pending appeal with respect to wages or employment that were not considered in the original monetary determination in his or her benefit year, he or she may subsequently be determined to be entitled to added regular benefits; or
    2. his or her benefit year having expired prior to the week, has no, or insufficient, wages or employment on the basis of which he or she could establish a new benefit year that would include that week; and
    3. has no right to unemployment benefits or allowances, as the case may be, under the Railroad Unemployment Insurance Act, and such other federal laws as are specified in regulations issued by the Secretary of Labor of the United States; and has not received and is not seeking unemployment benefits under the unemployment compensation law of Canada; but if he or she is seeking such benefits and the appropriate agency finally determines that he or she is not entitled to benefits under such law he or she is considered an exhaustee.
  9. "State law" means the unemployment insurance law of any state, approved by the Secretary of Labor of the United States under section 3304 of the Internal Revenue Code of 1986.
  10. "Suitable work" means, with respect to any individual, any work which is within the individual's capabilities; except that, if the individual furnished evidence satisfactory to the Commissioner that the individual's prospects for obtaining work in his or her customary occupation within a reasonably short period are good, the determination of whether any work is suitable work with respect to the individual shall be made in accordance with the provisions of subdivision 1344(a)(2) of this title.

    Added 1971, No. 1 , § 2, eff. Oct. 11, 1970; amended 1973, No. 231 (Adj. Sess.), § 4, eff. April 3, 1974; 1977, No. 64 , § 20, eff. May 1, 1977; 1979, No. 120 (Adj. Sess.), § 10, eff. March 31, 1980; 1981, No. 86 , § 5, eff. April 5, 1981; 1981, No. 194 (Adj. Sess.), § 5, eff. Sept. 25, 1982; 1993, No. 58 , § 1, eff. June 3, 1993.

History

Reference in text. Chapter 85 of Title 5 of the United States Code, referred to in subdivs. (6) and (8)(A), is codified as 5 U.S.C. §§ 8501-8525.

The Railroad Unemployment Insurance Act, referred to in subdiv. (8)(C), is codified as 45 U.S.C. § 351 et seq.

Section 3304 of the Internal Revenue Code of 1986, referred to at the end of subdiv. (9), is codified as 26 U.S.C. § 3304.

Revision note. At the end of subdiv. (9), substituted "the Internal Revenue Code of 1986" for "the Internal Revenue Code of 1954" to conform reference to redesignation of the Code pursuant to section (2)(a) of P.L. 99-514.

Amendments--1993. Rewrote subdivisions (2)-(4).

Amendments--1981 (Adj. Sess.). Section amended generally.

Amendments--1981. Subdiv. (12): Added.

Amendments--1979 (Adj. Sess.). Subdiv. (2): Inserted "beginning after December 31, 1976" preceding "if" in the first sentence and substituted "section" for "subsection" preceding "shall" in the second sentence.

Subdiv. (3): Inserted "beginning after December 31, 1976" preceding "if" in the first sentence and substituted "section" for "division" preceding "shall" in the second sentence.

Subdiv. (4): Inserted "beginning after March 30, 1977" preceding "if".

Subdiv. (5): Inserted "beginning after March 30, 1977" preceding "if".

Subdivs. (6)-(11): Added.

Amendments--1977. Subdiv. (1)(B)(II): Substituted "an" for "and" preceding "extended benefit period".

Subdiv. (2): Substituted "for the period consisting of that week and the immediately preceding 12 weeks" for "the Secretary of Labor of the United States determines that for each of the three most recent completed calendar months ending before such week" following "week if" and added the second sentence.

Subdiv. (3): Substituted "for the period consisting of that week and the immediately preceding 12 weeks" for "the Secretary of Labor of the United States determines that for each of the three most recent completed calendar months ending before such week" following "week if" and added the second sentence.

Subdiv. (4)(A): Amended generally.

Subdiv. (4)(B): Amended generally.

Subdiv. (5): Amended generally.

Subdivs. (6)-(11): Deleted.

Amendments--1973 (Adj. Sess.). Subdiv. (4): Made minor stylistic changes.

Subdiv. (5): Made minor stylistic changes and added the second sentence.

Temporary suspension of certain requirements for triggering an extended benefit period. 2021, No. 51 , § 9 provides: "For purposes of determining whether the State is in an extended benefit period during the period from November 1, 2020 through December 31, 2021, the Commissioner shall disregard the requirement in 21 V.S.A. § 1421 that no extended benefit period may begin before the 14th week following the end of a prior extended benefit period."

ANNOTATIONS

1. Effect of amendments.

Where section 1423 of this title made being an "exhaustee," as defined in this section, a prerequisite to eligibility for extended benefits, and the definition had been deleted from this section, apparently unintentionally, by the legislature in 1977, the deletion would not be found to defeat the entire extended benefits program until such time as the legislature should re-enact the definition. Smith v. Department of Employment Security, 137 Vt. 383, 407 A.2d 158 (1979).

Cited. Littlefield v. Department of Employment & Training, 145 Vt. 247, 487 A.2d 507 (1984).

§ 1422. Regular and extended benefits.

Except when the result would be inconsistent with the other provisions of this subchapter the provisions of this chapter which apply to claims for, or the payment of, regular benefits shall apply to claims for, and the payment of, extended benefits.

Added 1971, No. 1 , § 2, eff. Oct. 11, 1970.

ANNOTATIONS

Cited. Littlefield v. Department of Employment & Training, 145 Vt. 247, 487 A.2d 507 (1984).

§ 1423. Eligibility requirements for extended benefits.

  1. An individual shall be eligible to receive extended benefits with respect to any week of unemployment in his or her eligibility period only if the Commissioner finds that with respect to such week:
    1. he or she is an "exhaustee" as defined in section 1421 of this title,
    2. he or she has satisfied the requirements of this chapter for the receipt of regular benefits that are applicable to individuals claiming extended benefits, including not being subject to a disqualification for the receipt of benefits.
    3. For eligibility periods based upon benefit years beginning on and after January 3, 1988 and before March 7, 1993, the total wages paid which established that benefit year must equal or exceed one and one-half times the wages paid in the highest quarter of that base period.
    4. For eligibility periods based upon benefit years beginning on and after March 7, 1993, the total wages paid which established that benefit year must exceed 40 times the individual's most recent weekly benefit amount.
  2. Except as provided in subsection (c) of this section, an individual shall not be eligible for extended benefits for any week if:
    1. extended benefits are payable for such week pursuant to an interstate claim filed in any state under the interstate benefit payment plan, and
    2. no extended benefit period is in effect for such week in such state.
  3. Subsection (b) of this section shall not apply with respect to the first two weeks for which extended benefits are payable pursuant to an interstate claim filed under this interstate benefit payment plan to the individual from the extended compensation account established for the individual with respect to the benefit year.

    Added 1971, No. 1 , § 2, eff. Oct. 11, 1970; amended 1981, No. 86 , § 2, eff. May 31, 1981; 1981, No. 194 (Adj. Sess.), § 6, eff. April 22, 1982; 1985, No. 146 (Adj. Sess.), § 5; 1993, No. 58 , §§ 2, 3, eff. June 3, 1993.

History

Amendments--1993. Subdiv. (a)(3): Inserted "on and after" following "beginning" and substituted "before March 7, 1993" for "subsequent" preceding "the total".

Subdiv. (a)(4): Added.

Amendments--1985 (Adj. Sess.). Subdiv. (a)(3): Added.

Amendments--1981 (Adj. Sess.). Subdiv. (a)(1): Substituted "section 1421 of this title" for "section 1421(10) of this title".

Subsec. (b): Deleted "Canada or" preceding "any state" in subdiv. (1) and preceding "such state" in subdiv. (2).

Amendments--1981. Designated existing provisions of section as subsec. (a) and added subsecs. (b) and (c).

Cross References

Cross references. Disqualifications for extended benefits, see § 1423a of this title.

Eligibility conditions for regular benefits, see § 1343 of this title.

Eligibility requirements for short-time compensation benefits, see § 1457 of this title.

ANNOTATIONS

1. Construction with other laws.

Where this section made being an "exhaustee" as defined in section 1421 of this title a prerequisite to eligibility for extended benefits, and the definition had been deleted from section 1421, apparently unintentionally, by the legislature, the deletion would not be found to defeat the entire extended benefits program until such time as the legislature should reenact the definition. Smith v. Department of Employment Security, 137 Vt. 383, 407 A.2d 158 (1979).

Where federal and state extended unemployment compensation benefit programs and statutes were interconnected and state law was meant to conform to federal law, and definition of "exhaustee" had, apparently unintentionally, been deleted from section 1421 of this title, court would, in construing this section's provision that one must be an "exhaustee" to be eligible for the program, look to federal definition. Smith v. Department of Employment Security, 137 Vt. 383, 407 A.2d 158 (1979).

Cited. Littlefield v. Department of Employment & Training, 145 Vt. 247, 487 A.2d 507 (1984).

§ 1423a. Disqualifications.

  1. Notwithstanding any other provision of this subchapter, if so found by the Commissioner, payment of extended compensation shall not be made to any individual for any week of unemployment in his or her eligibility period:
    1. during which he or she fails to accept any offer of suitable work; or
    2. fails to apply for any suitable work to which he or she was referred by the Commissioner; or
    3. during which he or she fails to actively engage in seeking work.
  2. If any individual is ineligible for extended compensation for any week by reason of a failure described in subsection (a) of this section, the individual shall be ineligible to receive extended compensation for any week which begins during a period which:
    1. begins with the week following the week in which such failure occurs; and
    2. does not end until such individual has been employed during at least four weeks which begin after such failure and the total of the remuneration earned by the individual for being so employed is not less than the product of six multiplied by the individual's average weekly benefit amount as determined for his or her benefit year.
  3. Extended compensation shall not be denied under subsection (a) of this section to any individual for any week by reason of a failure to accept an offer of, or apply for, suitable work:
    1. if the gross average weekly remuneration payable to that individual for the position does not exceed the sum of:
      1. the individual's average weekly benefit amount as determined for his or her benefit year, plus
      2. the amount, if any, of supplemental unemployment compensation benefits, as defined in section 501(c)(17)(D) of the Internal Revenue Code of 1986, payable to that individual for that week;
    2. if the position was not offered to the individual in writing and was not listed with the State employment service;
    3. if the failure would not result in a denial of compensation under the provisions of subdivision 1344(a)(2) of this title to the extent that those provisions are not inconsistent with the provisions of subdivision 1421(10) of this title and subsection (d) of this section; or
    4. if the position pays wages less than the higher of:
      1. the minimum wage provided by section 6(a)(1) of the Fair Labor Standards Act of 1938, without regard to any exemption; or
      2. any applicable state or local minimum wage.
  4. For purposes of this subsection, an individual shall be treated as actively engaged in seeking work during any week if:
    1. the individual has engaged in a systematic and sustained effort to obtain work during that week, and
    2. the individual provides tangible evidence to the Commissioner that he or she has engaged in such an effort during that week.
  5. No provision of section 1344 which terminates a disqualification for voluntarily leaving employment, being discharged for misconduct, or refusing suitable employment shall apply for purposes of determining eligibility for extended compensation unless that termination is based upon employment subsequent to the date of the disqualification.

    Added 1981, No. 86 , § 4, eff. April 5, 1981; amended 1981, No. 194 (Adj. Sess.), § 7, eff. Sept. 25, 1982.

History

Reference in text. Section 501(c)(17)(D) of the Internal Revenue Code of 1986, referred to in subdiv. (c)(1)(B), is codified as 26 U.S.C. § 501(c)(17)(D).

Section 6(a)(1) of the Fair Labor Standards Act of 1938, referred to in subdiv. (c)(4)(A), is codified as 29 U.S.C. § 206(a)(1).

2009. In subdiv. (c)(1)(B), substituted "the Internal Revenue Code of 1986" for "the Internal Revenue Code of 1954" to conform reference to redesignation of the Code pursuant to section 2(a) of P.L. 99-514.

Amendments--1981 (Adj. Sess.). Subdiv. (c)(3): Substituted "(10)" for "(12)" following "1421".

§ 1423b. Repealed. 2009, No. 156 (Adj. Sess.), § E.401.4, eff. June 3, 2010.

History

Former § 1423b. Former § 1423b, relating to extended benefits and approved training programs, was derived from 2009, No. 54 , § 34.

§ 1424. Weekly extended benefit amount.

The weekly extended benefit amount payable to an individual for a week of total unemployment in his or her eligibility period shall be an amount equal to the weekly benefit amount payable to him or her during his or her applicable benefit year.

Added 1971, No. 1 , § 2, eff. Oct. 11, 1970; amended 1981, No. 194 (Adj. Sess.), § 8, eff. Sept. 26, 1982; 1985, No. 50 , § 10.

History

Amendments--1985. Deleted "except that for extended benefit eligibility periods beginning September 26, 1982 and subsequent, the weekly extended benefit amount payable shall not exceed 1/4 0 th of the total wages actually used in the calculation of such individual's average weekly wage as provided in section 1338(d)" following "year".

Amendments--1981 (Adj. Sess.). Added "except that for extended benefit eligibility periods beginning September 26, 1982 and subsequent, the weekly extended benefit amount payable shall not exceed 1/4 0 th of the total wages actually used in the calculation of such individual's average weekly wage as provided in section 1338(d)" following "year".

Cross References

Cross references. Weekly benefits generally, see § 1338 of this title.

ANNOTATIONS

Cited. Smith v. Department of Employment Security, 137 Vt. 383, 407 A.2d 158 (1979); Littlefield v. Department of Employment & Training, 145 Vt. 247, 487 A.2d 507 (1984).

§ 1425. Total extended benefit amount.

  1. The total extended benefit amount payable to any eligible individual with respect to his or her applicable benefit year shall be the least of the following amounts:
    1. 50 percent of the total amount of regular benefits which were payable to him or her under this chapter in his or her applicable benefit year;
    2. 13 times his or her weekly benefit amount which was payable to him or her under this chapter for a week of total unemployment in the applicable benefit year.
  2. Notwithstanding any other provisions of this chapter, if the benefit year of any individual ends within an extended benefit period, the remaining balance of extended benefits that such individual would, but for this section, be entitled to receive in that extended benefit period, with respect to weeks of unemployment beginning after the end of the benefit year, shall be reduced (but not below zero) by the product of the number of weeks for which the individual received trade readjustment allowances within that benefit year, multiplied by the individual's weekly benefit amount for extended benefits.
  3. Effective with respect to weeks beginning in a high unemployment period, subsection (a) of this section shall be applied by substituting:
    1. "80 percent" for "50 percent" in subsection (a)(1) of this section; and
    2. "20" for "13" in subdivision (a)(2).
  4. For purposes of subsection (c) of this section, the term "high unemployment period" means any period during which an extended benefit period would be in effect if subdivision 1421(2)(B)(ii)(I) of this title were applied by substituting "8 percent" for "6.5 percent."

    Added 1971, No. 1 , § 2, eff. Oct. 11, 1970; amended 1981, No. 194 (Adj. Sess.), § 9, eff. Oct. 31, 1982; 1993, No. 58 , § 4, eff. June 3, 1993.

History

2009. In subsec. (d), substituted "subdivision 1421(2)(B)(ii)(I) of this title" for "subsection 1421(8)(B)" for purposes of clarity and to correspond reference to § 1421 of this title.

Amendments--1993. Added subsecs. (c) and (d).

Amendments--1981 (Adj. Sess.). Subsec. (b): Added.

ANNOTATIONS

Cited. Littlefield v. Department of Employment & Training, 145 Vt. 247, 487 A.2d 507 (1984).

§ 1426. Beginning and termination of extended benefit period.

  1. Whenever an extended benefit period is to become effective in this State, as a result of a State "on" indicator, or an extended benefit period is to be terminated in this State as a result of a State "off" indicator, the Commissioner shall make an appropriate public announcement.
  2. Computations required by the provisions of section 1421 of this title shall be made by the Commissioner, in accordance with regulations prescribed by the Secretary of Labor of the United States.

    Added 1971, No. 1 , § 2, eff. Oct. 11, 1970; amended 1981, No. 194 (Adj. Sess.), § 10, eff. April 22, 1982.

History

Amendments--1981 (Adj. Sess.). Subsec. (a): Deleted "or in all states" following "effective in this state", "or a national" preceding "'on' indicator" and "or state and national 'off' indicators" preceding "the commissioner".

Subsec. (b): Deleted "(6)" following "1421".

ANNOTATIONS

Cited. Littlefield v. Department of Employment & Training, 145 Vt. 247, 487 A.2d 507 (1984).

§ 1427. Amendments to the Federal-State Extended Unemployment Compensation Act of 1970.

To the extent that the Federal-State Extended Unemployment Compensation Act of 1970 has been or may be amended so as to authorize this State to pay benefits for an extended benefit period in a manner other than provided by this title, then, and in such cases, all the terms and conditions contained in the amended provisions of such federal law shall become a part of this title to the extent necessary to authorize the payment of benefits to eligible individuals as permitted under such provisions, provided that the federal share continues to be at least 50 percent of the extended benefits paid to individuals under the extended benefits program.

Added 1993, No. 58 , § 5, eff. June 3, 1993.

History

Reference in text. The Federal-State Extended Unemployment Compensation Act of 1970, referred to in this section, is set out as a note under 26 U.S.C. § 3304.

Prior law. Former § 1427, relating to effect of amendment of the Federal-State Extended Unemployment Compensation Act of 1970, was derived from 1973, No. 231 (Adj. Sess.), § 5 and was repealed by 1977, No. 64 , § 25a.

Subchapter 3. Short-Time Compensation Program

History

Termination of subchapter. 1985, No. 140 (Adj. Sess.), § 2, provides for the termination of this subchapter on June 30, 1988.

Termination of subchapter; repeal of termination provisions. 1987, No. 135 (Adj. Sess.), § 1, provides for the repeal of 1985, No. 140 (Adj. Sess.), § 2, which provided for the termination of this subchapter.

Compliance with United States Department of Labor. 2011, No. 162 (Adj. Sess.), § E.401.8(a) provides: "In the event that the United States Secretary of Labor determines that any provision of the short-time compensation program (21 V.S.A. chapter 19, subchapter 3) is not in conformance with 26 U.S.C. § 3306(v) as added by the federal Layoff Prevention Act of 2012, the provision shall be unenforceable."

Short-time compensation funding. 2011, No. 162 (Adj. Sess.), § E.401.9(a) provides: "The Commissioner of Labor is hereby authorized to pursue federal funding for Vermont's short-time compensation program, if after an analysis of the eligibility requirements for receiving such funding, he or she concludes that doing so would be in the best interest of the state of Vermont."

§ 1451. Definitions.

As used in this subchapter:

  1. "Affected unit" means a specific plan, department, shift, or other definable unit consisting of not less than five employees to which an approved short-time compensation plan applies.
  2. "Defined benefit plan" means a plan described in 26 U.S.C. § 414(j) .
  3. "Defined contribution plan" means a plan described in 26 U.S.C. § 414(i) .
  4. "Short-time compensation" or "STC" means the unemployment benefits payable to employees in an affected unit under an approved short-time compensation plan as distinguished from the unemployment benefits otherwise payable under the conventional unemployment compensation provisions of this chapter.
  5. "Short-time compensation plan" means a plan of an employer under which there is a reduction in the number of hours worked by employees of an affected unit rather than layoffs. The term "layoffs" for this purpose means the total separation of one or more workers in the affected unit.
  6. "Short-time compensation employer" means an employer who has one or more employees covered by an approved "Short-time compensation plan." "Short-time compensation employer" means an employer with an experience rating record or an employer who makes payments in lieu of contributions to the Unemployment Compensation Trust Fund and that meets all of the following criteria:
    1. Has five or more employees covered by an approved short-time compensation plan.
    2. Is not delinquent in the payment of contributions or reimbursement, or in the reporting of wages.
    3. Is not a negative balance employer. For the purposes of this section, a negative balance employer is an employer who has for three or more consecutive calendar years immediately prior to applying for the STC plan paid more in unemployment benefits to its employees than it has contributed to its unemployment insurance account. In the event that an employer has been a negative balance employer for three consecutive years, the employer shall be ineligible for participation unless the Commissioner grants a waiver based upon extenuating economic conditions or other good cause.
  7. "Usual weekly hours of work" means the normal hours of work for full-time or part-time employees in the affected unit when that unit is operating on its regular basis not to exceed 40 hours and not including hours of overtime work.
  8. "Unemployment compensation" means the unemployment benefits payable under this chapter other than short-time compensation and includes any amounts payable pursuant to an agreement under any federal law providing for compensation, assistance, or allowances with respect to unemployment.
  9. "Fringe benefits" means benefits, including health insurance, retirement benefits, paid vacations and holidays, sick leave, and similar benefits that are incidents of employment.
  10. "Intermittent employment" means employment that is not continuous but may consist of intervals of weekly work and intervals of no weekly work.
  11. "Seasonal employment" means employment with an employer who experiences at least a 20-percent difference between its highest level of employment during a particular season and its lowest level of employment during the off-season in each of the previous three years as reported to the Department, or employment with an employer on a temporary basis during a particular season.

    Added 1985, No. 140 (Adj. Sess.), § 1; amended 2011, No. 162 (Adj. Sess.), § E.401.3; 2013, No. 72 , § 35a.

History

Amendments--2013 Section amended generally.

Amendments--2011 (Adj. Sess.). Subdiv. (4): Deleted the former second sentence; added the present second sentence and added subdivs. (A)-(C).

Subdivs. (7)-(9): Added.

§ 1452. Criteria for approval.

  1. An employer wishing to participate in an STC program shall submit a Department of Labor electronic application or a signed written short-time compensation plan to the Commissioner for approval. The Commissioner may approve an STC plan only if the following criteria are met:
    1. The plan identifies the specified affected units to which it applies.
    2. The employees in the affected unit or units are identified by name, Social Security number, and by any other information required by the Commissioner.
    3. The plan provides that if the employer provides fringe benefits, including health benefits and retirement benefits under a defined benefit plan or contributions under a defined contribution plan, to any employee whose workweek is reduced under the program, that the benefits will continue to be provided to employees participating in the short-time compensation program under the same terms and conditions as though the workweek had not been reduced. However, reductions in the benefits of short-time compensation plan participants are permitted to the extent that the reductions also apply to nonparticipant employees.
    4. The usual total weekly hours of work for employees in the affected unit or units are reduced by not less than 20 percent and not more than 50 percent.
    5. The plan certifies that the aggregate reduction in work hours is in lieu of layoffs of one or more workers which would have resulted in an equivalent reduction in work hours and which the Commissioner finds would have caused an equivalent dollar amount to be payable in unemployment compensation.
    6. The plan certifies that the STC employer will notify the Department within 24 hours after any layoff of an employee, at which time the Commissioner shall have the right to terminate the STC plan.
    7. The identified workweek reduction is applied consistently throughout the duration of the plan unless otherwise approved by the Department. The plan shall not subsidize seasonal employers during the off-season.
    8. The plan applies to at least 10 percent of the employees in the affected unit, and when determined to be applicable by the Commissioner applies to all affected employees of the unit equally.
    9. The plan will not subsidize seasonal employers during the off-season, nor subsidize employers who have traditionally used part-time employees or intermittent employment.
    10. The employer agrees to maintain records relative to the plan for a period of three years and furnish reports relating to the proper conduct of the plan and agrees to allow the Commissioner or his or her authorized representatives access to all records necessary to verify the plan prior to approval and, after approval, to monitor and evaluate application of the plan.
    11. The plan certifies that the collective bargaining agent or agents for the employees, if any, have agreed to participate in the program. If there is no bargaining unit, the employer specifies how he or she will notify the employees in the affected group and work with them to implement the program once the plan is approved.
    12. The plan describes the manner in which the requirements of this section will be implemented and where feasible how notice will be given to an employee whose workweek is to be reduced and an estimate of the number of layoffs that would have occurred absent the ability to participate in the short-time compensation program and any other information that the U.S. Secretary of Labor determines is appropriate.
    13. The employer certifies that the plan is consistent with employer obligations under applicable State and federal laws.
  2. In the event of any conflict between any provision of sections 1451-1460 of this title, or the regulations implemented pursuant to these sections, and applicable federal law, the federal law shall prevail and the provision shall be deemed invalid.

    Added 1985, No. 140 (Adj. Sess.), § 1; amended 2007, No. 104 (Adj. Sess.), § 2; 2011, No. 162 (Adj. Sess.), § E.401.4; 2013, No. 72 , § 35b, eff. June 30, 2013.

History

Amendments--2013 Added subsec. (a) designation, rewrote subdiv. (a)(3), deleted "temporary total" preceding "layoffs" in subdiv. (a)(5), added the second sentence of subdiv. (a)(7); deleted "and" following "plan is approved" in subdiv. (a)(11), rewrote subdiv. (a)(12), added subdiv. (a)(13), and subsec. (b).

Amendments--2011 (Adj. Sess.). Section amended generally.

Amendments--2007 (Adj. Sess.) Inserted "Department of Labor electronic application or a" preceding "signed" in the introductory paragraph, and "maintain records relative to the plan for a period of three years and" preceding "furnish" and "or her" following "his" in subdiv. (8).

§ 1453. Approval or rejection; resubmission.

The Commissioner shall approve or reject a plan in writing within 30 days of its receipt, and in the case of rejection shall state the reasons therefor. The reasons for rejection shall be final and nonappealable, but the employer shall be allowed to submit another plan for approval, that addresses the reasons that led to the rejection of the original plan.

Added 1985, No. 140 (Adj. Sess.), § 1; amended 2011, No. 50 , § 8; 2011, No. 162 (Adj. Sess.), § E.401.5.

History

Amendments--2011 (Adj. Sess.). Inserted ", that addresses the reasons that led to the rejection of the original plan" following "approval" at the end of the second sentence.

Amendments--2011. Substituted "30" for "15" preceding "days".

§ 1454. Effective date; duration.

A plan shall be effective on the date specified in the plan or on a date mutually agreed upon by the employer and the Commissioner. It shall expire at the end of the sixth full calendar month after its effective date or on the date specified in the plan if such date is earlier; provided, that the plan is not previously revoked by the Commissioner; or on the effective date of any transfer of ownership of the legal business entity. If a plan is revoked or terminated by the Commissioner, it shall terminate on the date specified in the Commissioner's written order of revocation. No employer shall be eligible for a short-time compensation plan that results in an employee receiving benefits in excess of 26 times the amount of regular unemployment benefits payable to such individual for a week of total unemployment.

Added 1985, No. 140 (Adj. Sess.), § 1; amended 2011, No. 162 (Adj. Sess.), § E.401.6.

History

Amendments--2011 (Adj. Sess.). Inserted "or terminated" following "revoked" in the third sentence and added the fourth sentence.

§ 1455. Revocation.

  1. The Commissioner may revoke approval of a plan for good cause.  The revocation order shall be in writing and shall specify the date the revocation is effective and the reasons therefor.
  2. Good cause shall include violation of any criteria on which approval of the plan was based.
  3. Such action may be taken at any time by the Commissioner on his or her own motion.  The Commissioner shall review the operation of each qualified employer plan at least once during the first three months that the plan is in effect to assure its compliance with the requirements of this subchapter.  In addition, the Commissioner shall investigate any written complaint about the operation of the approved plan and determine in writing whether or not good cause exists for revocation.  Such determination to investigate is not appealable.
  4. An employer may appeal a revocation decision by the Commissioner and such appeal shall be treated as a "contested case" under the Administrative Procedure Act.

    Added 1985, No. 140 (Adj. Sess.), § 1.

History

Reference in text. The Administrative Procedure Act, referred to in subsec. (d), is codified as 3 V.S.A. § 801 et seq. For provisions relating to procedure in contested cases, see 3 V.S.A. §§ 809-813.

2016. In subsec. (b), deleted "but not limited to," following "including," in accordance with 2013, No. 5 , § 4.

§ 1456. Modification.

An approved STC plan may be modified by the employer with the approval of the Commissioner. If the hours of work are increased or decreased substantially beyond the level in the original plan, or any other conditions are changed substantially, the Commissioner shall approve or disapprove such modifications. The expiration of the original plan shall not change. If the substantial modifications do not meet the requirements for approval, the Commissioner shall disallow that portion of the plan in writing as specified in subsection 1455(a) of this title.

Added 1985, No. 140 (Adj. Sess.), § 1.

§ 1457. Eligibility.

  1. An individual is eligible to receive STC benefits with respect to any week only if, in addition to eligibility for monetary entitlement, the Commissioner finds that:
    1. the individual is employed during that week as a member of an affected unit under an approved short-time compensation plan that was in effect for that week;
    2. the individual is able to work and is available for the normal work week with the short-time employer;
    3. notwithstanding any other provisions of this chapter to the contrary, an individual is deemed unemployed in any week for which remuneration is payable to him or her as an employee in an affected unit for less than his or her normal weekly hours of work as specified under the approved short-time compensation plan in effect for the week;
    4. notwithstanding any other provisions of this chapter to the contrary, an individual shall not be denied STC benefits for any week by reason of the application of provisions relating to availability for work and active search for work with an employer other than the short-time employer.
  2. Eligible employees may participate, as appropriate, in training, including employer-sponsored training or worker training funded under the federal Workforce Innovation and Opportunity Act, to enhance job skills if the program has been approved by the Department.

    Added 1985, No. 140 (Adj. Sess.), § 1; amended 2013, No. 72 , § 35c, eff. June 30, 2013; 2019, No. 131 (Adj. Sess.), § 126.

History

Amendments--2019 (Adj. Sess.). Subsec. (b): Inserted "federal" preceding "Workforce" and substituted "Innovation and Opportunity Act" for "Investment Act of 1998".

Amendments--2013 Added subsec. (a) designation and added subsec. (b).

Cross References

Cross references. Eligibility requirements for extended benefits, see § 1423 of this title.

Eligibility requirements for regular benefits, see § 1343 of this title.

§ 1458. Short-time compensation benefits.

  1. The short-time weekly benefit amount shall be the product of the regular weekly unemployment compensation amount multiplied by the percentage of reduction in the individual's usual weekly hours of work.
  2. No individual, including a claimant for STC, is eligible in any benefit year for more than the maximum unemployment compensation entitlement payable in accordance with section 1340 of this title.
  3. The STC benefits paid an individual shall be deducted from the maximum unemployment compensation entitlement amount established in accordance with section 1340 for that individual's benefit year.
  4. Claims for STC benefits shall be filed in the same manner as claims for unemployment compensation or as prescribed by the Commissioner.
  5. Provisions of this subchapter and Vermont Employment Security Board rules applicable to unemployment compensation claimants shall apply to STC claimants to the extent that they are not inconsistent with this subchapter. An individual who files a new initial claim for STC benefits shall be provided, if eligible therefor, a monetary determination of entitlement to STC benefits and shall serve a waiting week as required under § 1343(a)(4) of this title.
    1. If an individual works in the same week for both the short-time employer and another employer and his or her combined hours of work for both employers are equal to or greater than 81 percent of the usual hours of work with the short-time employer, he or she shall not be entitled to benefits under these short-time provisions or the unemployment compensation provisions. (f) (1)  If an individual works in the same week for both the short-time employer and another employer and his or her combined hours of work for both employers are equal to or greater than 81 percent of the usual hours of work with the short-time employer, he or she shall not be entitled to benefits under these short-time provisions or the unemployment compensation provisions.
    2. If an individual works in the same week for both the short-time employer and another employer and his or her combined hours of work for both employers are equal to or less than 80 percent of the usual hours of work for the short-time employer, the benefit amount payable for that week shall be the weekly unemployment compensation amount reduced by the same percentage that the combined hours are of the usual hours of work. A week for which benefits are paid under this provision shall count as a week of short-time compensation.
    3. An individual who does not work during a week for the short-time employer, and is otherwise eligible, shall be paid his or her full weekly unemployment compensation benefit amount under the provisions of the regular unemployment compensation program. Such a week shall not be counted as a week for which short-time compensation benefits were received.
    4. An individual who does not work the short-time employer's identified workweek reduction hours as certified by the application due to the use of paid vacation or personal time shall be paid benefits for the week under the partial unemployment compensation provisions of the regular unemployment compensation program.
    5. An individual who does not work for the short-time employer during a week but works for another employer and is otherwise eligible, shall be paid benefits for that week under the partial unemployment compensation provisions of the regular UI program. Such a week shall not be counted as a week with respect to which STC benefits were received.

      Added 1985, No. 140 (Adj. Sess.), § 1; amended 2007, No. 104 (Adj. Sess.), § 3; 2009, No. 124 (Adj. Sess.), § 9, eff. July 1, 2012; 2011, No. 162 (Adj. Sess.), § E401.7.

History

Amendments--2011 (Adj. Sess.). Inserted "under the provisions of the regular unemployment compensation program" following "amount" in subdiv. (3); added the present subdiv. (4) and redesignated former subdiv. (4) as present subdiv. (5).

Amendments--2009 (Adj. Sess.) Subsec. (e): Added "and shall serve a waiting week as required under § 1343(a)(4) of this title" following "STC benefits" in the second sentence.

Amendments--2007 (Adj. Sess.) Subsec. (e): Deleted "and shall serve a waiting week" following "entitlement to STC benefits" in the second sentence.

Cross References

Cross references. Weekly benefit for partial unemployment, see § 1339 of this title.

Weekly benefits for total unemployment, see § 1338 of this title.

§ 1459. Charging benefits.

STC benefits paid to an employee shall be charged to the employers in the base period. Reimbursable employers participating in the STC Program shall be assessed for the STC benefits paid their employees.

Added 1985, No. 140 (Adj. Sess.), § 1; amended 2013, No. 173 (Adj. Sess.), § 6.

History

Amendments--2013 (Adj. Sess.). Substituted "the employers in the base period" for "his or her STC employer's experience-rating records" at the end of the first sentence.

Cross References

Cross references. Employers' experience-rating records, see § 1325 of this title.

§ 1460. Extended benefits program eligibility.

An individual who has received all of the unemployment compensation or combined unemployment compensation and STC benefits available in a benefit year shall be considered an "exhaustee" as defined under the provisions of subdivision 1421(8) of this title.

Added 1985, No. 140 (Adj. Sess.), § 1.

History

2016. Substituted "of subdivision 1421(8)" for ", subdivision 1421(2)" to correct grammatical error and to change cross-reference to correct citation as enacted by 1985, No. 140 (Adj. Sess.), § 1.

§ 1461. Misrepresentation; penalties.

If an approved plan or any representation for implementation of the plan is intentionally and substantially misleading or false, the employer shall be liable for any amount of benefits deemed by the Commissioner to have been improperly paid from the fund as a result thereof.

Added 1985, No. 140 (Adj. Sess.), § 1.

§ 1462. Period of dormancy.

On July 1, 2020, the Short-Time Compensation Program established pursuant to sections 1451-1461 of this subchapter shall cease operation and shall not resume operation unless directed to do so by enactment of the General Assembly or, if the General Assembly is not in session, by order of the Joint Fiscal Committee. The Joint Fiscal Committee shall issue such order only upon finding that, due to a change in circumstances, resumption of the Short-Time Compensation Program would be the most effective way to assist employers in avoiding layoffs. Upon the effective date of such an enactment or order, the Short-Time Compensation Program shall resume operation pursuant to the provisions of sections 1451-1461 of this subchapter.

Added 2019, No. 85 (Adj. Sess.), § 20, eff. Feb. 20, 2020.

Subchapter 4. Benefits for Approved Job Training Program

§ 1471. Training benefit program.

  1. An individual who is otherwise eligible for benefits under this chapter, but who has exhausted his or her maximum benefit amount under section 1340 of this chapter and any other available federally funded extension, is entitled to a maximum of an additional 26 weeks of benefits in the same amount as the weekly benefit amount established in the individual's most recent benefit year if the individual is enrolled in and making satisfactory progress in either a State-approved training program or a job training program authorized under the federal Workforce Innovation and Opportunity Act.
  2. To be eligible for training benefits under this section, an individual shall be in compliance with both the following:
    1. The individual has been separated from a declining occupation or has been involuntarily and indefinitely separated from employment as a result of a permanent reduction of operations at the individual's place of employment.
    2. The individual is enrolled in a program designed to train the individual for entry into a high demand occupation.

      Added 2009, No. 156 (Adj. Sess.), § E.401.1, eff. June 3, 2010; amended 2019, No. 131 (Adj. Sess.), § 127.

History

2020. In subsec. (a), inserted "Workforce" before "Innovation and Opportunity Act" to correct the cross-reference.

Amendments--2019 (Adj. Sess.). Subsec. (a): Inserted "federal" following "under the" and substituted "Innovation and Opportunity Act" for "Workforce Investment Act of 1998".

CHAPTER 19. VERMONT STATE LABOR RELATIONS ACT

History

Severability of enactment. 1967, No. 198 , § 34, provided: "If any provision of this act, or the application of such provision to any person or circumstances shall be held invalid, the remainder of this act, or the application of that provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby".

Effective date of certain 2013 amendments. Amendments contained in 2013, No. 37 , § 20, shall take effect June 30, 2013 and apply to employees covered by this chapter on the date following the expiration date stated in any collective bargaining agreement then in effect. If no collective bargaining agreement is in effect on June 30, 2013 the act shall take effect July 1, 2013.

Cross References

Cross references. Labor relations for teachers, see 16 V.S.A. § 1981 et seq.

Municipal Labor Relations Act, see § 1721 et seq. of this title.

State employees labor relations act, see 3 V.S.A. § 901 et seq.

ANNOTATIONS

1. Construction with other laws.

State Labor Relations Act (SLRA), State Employees Labor Relations Act (SELRA), and Municipal Employees Relations Act (MERA) are closely related and, therefore, should be considered in pari materia as part of one system intended to oversee labor relations. Board of Trustees of Kellogg-Hubbard Library, Inc. v. Labor Relations Board, 162 Vt. 571, 649 A.2d 784 (1994).

It would not make sense to afford aggrieved parties right to appeal from Labor Relations Board (LRB) orders in all proceedings under State Employee Labor Relations Act (SELRA) and Municipal Employees Relations Act (MERA), but to force parties to use indirect appeal route under V.R.C.P. 75 to appeal from LRB orders in identical proceedings under State Labor Relations Act. Board of Trustees of Kellogg-Hubbard Library, Inc. v. Labor Relations Board, 162 Vt. 571, 649 A.2d 784 (1994).

Only reasonable interpretation of purpose behind 1976 amendment to State Labor Relations Act (SLRA), State Employee Labor Relations Act (SELRA), and Municipal Employees Relations Act (MERA) is that legislature intended to consolidate general powers and procedures of Labor Relations Board in SELRA and to apply them to proceedings in each of three labor-relations statutes, while leaving intact particular procedures expressly provided for in SLRA and MERA. Board of Trustees of Kellogg-Hubbard Library, Inc. v. Labor Relations Board, 162 Vt. 571, 649 A.2d 784 (1994).

Legislature intended to afford aggrieved parties right to appeal to Supreme Court from final decisions in all types of proceedings under each of three statutes administered by Labor Relations Board (State Labor Relations Act (SLRA), State Employee Labor Relations Act (SELRA), and Municipal Employees Relations Act (MERA)). Board of Trustees of Kellogg-Hubbard Library, Inc. v. Labor Relations Board, 162 Vt. 571, 649 A.2d 784 (1994).

Although 3 V.S.A. § 924(d) of State Employee Labor Relations Act (SELRA) requires Labor Relations Board (LRB) to exercise all powers and follow procedures set forth in SLRA and Municipal Employees Relations Act (MERA), neither SLRA nor MERA includes all of general powers necessary to carry out LRB's responsibilities under those statutes. Board of Trustees of Kellogg-Hubbard Library, Inc. v. Labor Relations Board, 162 Vt. 571, 649 A.2d 784 (1994).

Cited. Board of Trustees of Kellogg-Hubbard Library, Inc. v. Labor Relations Board, 162 Vt. 571, 649 A.2d 784 (1994).

Subchapter 1. General Provisions

§ 1501. Title and declaration of policy.

  1. This chapter shall be known as the State Labor Relations Act.
  2. It is the purpose and policy of this chapter to prescribe the legitimate rights of both employees and employers in their relations with each other, to provide orderly and peaceful procedures for preventing the interference by either with the legitimate rights of the other, to protect the rights of individual employees in their relations with labor organizations, to define and proscribe practices on the part of labor and management which are harmful to the general welfare, and to protect the rights of the public in connection with labor disputes.

    1967, No. 198 , § 1; amended 1969, No. 51 , § 1, eff. April 8, 1969.

History

Amendments--1969. Subsec. (b): Substituted "proscribe" for "prescribe" preceding "practices".

ANNOTATIONS

Cited. Kelley v. Day Care Center, Inc., 141 Vt. 608, 451 A.2d 1106 (1982).

§ 1502. Definitions.

As used in this chapter:

  1. "Board" means the State Labor Relations Board established under 3 V.S.A. § 921 .
  2. "Chair" means the Chair of the Board.
  3. "Commissioner" means the Commissioner of Labor.
  4. "Collective bargaining" or "bargaining collectively" means the process of negotiating terms, tenure, or conditions of employment between one or more employers and representatives of employees with the intent to arrive at an agreement that, when reached, shall be reduced to writing.
  5. "Collective bargaining unit" means the employees of an employer being either all of the employees, the members of a craft, or the employees of a plant or subdivision thereof.
  6. "Employee" includes any employee, and is not limited to the employees of a particular employer unless this chapter explicitly states otherwise, and includes any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice and who has not obtained any other regular and substantially equivalent employment, but does not include an individual;
    1. employed as an agricultural laborer;
    2. employed by his or her parent or spouse;
    3. employed in the domestic service of any family or person at his or her home;
    4. having the status of an independent contractor;
    5. employed as a supervisor;
    6. employed by an employer subject to the Railway Labor Act as amended from time to time; or
    7. employed by any other person who is not an employer as defined in subdivision (7) of this section.
  7. "Employer" means any person employing five or more employees and any person acting as an agent of an employer, employing five or more employees, directly or indirectly, but does not include:
    1. The United States or any wholly owned government corporation or any federal reserve bank.
    2. This State or any political subdivision thereof or any incorporated or interstate school district.
    3. Any person subject to the Railway Labor Act, as amended from time to time.
    4. Any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.
    5. A person operating a hospital or a nursing home, if no part of the net earnings inures to the benefit of a private individual or shareholder.
  8. "Labor dispute" includes any controversy concerning terms, tenure, or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
  9. "Labor organization" means an organization of any kind or any agency or any employee representation committee or plan in which employees participate and that exists for the purpose, in whole or in part, of dealing with employees concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
  10. "Person" includes one or more individuals, labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.
  11. "Professional employee" means:
    1. any employee engaged in work:
      1. predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work;
      2. involving the consistent exercise of discretion and judgment in its performance;
      3. of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; and
      4. requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual, or physical processes; or
    2. any employee who:
      1. has completed the courses of specialized intellectual instruction and study described in subdivision (A)(iv) of this subdivision (11); and
      2. is performing related work under the supervision of a professional person to qualify himself or herself to become a professional employee as defined in subdivision (A) of this subdivision (11).
  12. "Representatives" includes any individual or labor organization.
  13. "Supervisor" means an individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment.
  14. "Agency fee" means a fee deducted by an employer from the salary or wages of an employee who is not a member of an employee organization, which is paid to the employee organization that is the exclusive bargaining agent for the bargaining unit of the employee. An agency fee shall not exceed 85 percent of the amount payable as dues by members of the employee organization and shall be deducted in the same manner as dues are deducted from the salary or wages of members of the employee organization and shall be used to defray the costs of chargeable activities.

    Added 1967, No. 198 , § 2; amended 1967, No. 71 , § 1; 1975, No. 152 (Adj. Sess.), § 5; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2013, No. 37 , § 13, eff. June 30, 2013; 2017, No. 74 , § 55; 2017, No. 113 (Adj. Sess.), § 149.

History

Reference in text. The Railway Labor Act, referred to in subdivs. (6)(F) and (7)(C), is codified as 45 U.S.C. § 151 et seq.

Amendments--2017 (Adj. Sess.) Subdiv. (11)(A)(iii): Added "and" following "period of time;".

Amendments--2017. Subdiv. (14): Substituted "An agency" for "A collective bargaining service" at the beginning of the second sentence.

Amendments--2013. Substituted "as used in this chapter" for "in the following words shall have the following meaning" in the introductory paragraph, and added subdiv. (14).

Amendments--2005 (Adj. Sess.) Subdiv. (3): Substituted "Commissioner of Labor" for "commissioner of labor and industry".

Amendments--1975 (Adj. Sess.). Subdiv. (1): Added "established under section 921 of Title 3".

ANNOTATIONS

Analysis

1. Employers.

Labor Relations Board had jurisdiction over a day care center, a charitable corporation, alleged to have committed an unfair labor practice under section 1621 of this title since the center was clearly a corporation and, therefore, under subdivision (10) of this section, plainly within the definition of an employer under subdivision (7) of this section, and since the legislature intended to include most nonprofit corporations within the definition of an employer, having specifically excluded only two, hospitals and nursing homes, from it. Kelley v. Day Care Center, Inc., 141 Vt. 608, 451 A.2d 1106 (1982).

2. Supervisors.

Applying definition of "supervisor" to particular facts requires considerable discretion, and Labor Relations Board's decisions will not be overturned on appeal unless it is shown to be clearly erroneous. In re AFSCME, Local 490, 153 Vt. 318, 571 A.2d 63 (1989).

Effective exercise of any one of the powers enumerated in subdivision (13) of this section confers supervisory status on an employee. In re AFSCME, Local 490, 153 Vt. 318, 571 A.2d 63 (1989).

The existence of actual power, rather than the frequency of its use, determines supervisory status. In re AFSCME, Local 490, 153 Vt. 318, 571 A.2d 63 (1989).

Detailed regulations do not alone determine whether an employee operating under those regulations can exercise independent judgment within the meaning of subdivision (13) of this section. In re AFSCME, Local 490, 153 Vt. 318, 571 A.2d 63 (1989).

Test of whether an employee is a supervisor within the meaning of subdivision (13) of this section is whether or not the individual can effectively exercise the authority granted him; theoretical or paper power will not make one a supervisor, nor do rare or infrequent supervisory acts change the status of an employee to a supervisor. International Association of Firefighters v. Town of Hartford, 146 Vt. 371, 503 A.2d 1143 (1985).

Authority to suspend employees for the remainder of a shift does not make an employee a supervisor within the meaning of subdivision (13) of this section. International Association of Firefighters v. Town of Hartford, 146 Vt. 371, 503 A.2d 1143 (1985).

Labor relations board properly concluded that deputy fire chief was not a supervisor within the meaning of subdivision (13) of this section, where his authority over fire department employees was of a merely routine nature and did not require independent judgment. International Association of Firefighters v. Town of Hartford, 146 Vt. 371, 503 A.2d 1143 (1985).

An employee does not acquire a supervisor's status by temporarily taking over his supervisor's duties in his absence, nor do rare supervisory acts change an employee into a supervisor. Firefighters of Brattleboro v. Brattleboro Fire Department, 138 Vt. 347, 415 A.2d 243 (1980).

Where test of whether one was a supervisor was whether one could effectively exercise the authority granted him, theoretical or paper power would not make one a supervisor, so that fire captains who could suspend a firefighter for one day for unfitness for duty, subject to review by the chief and final approval by the town manager, were not supervisors. Firefighters of Brattleboro v. Brattleboro Fire Department, 138 Vt. 347, 415 A.2d 243 (1980).

Fire department captains were not supervisors within the meaning of subdivision (13) of this section, where they did not make policy decisions, exercised little discretion, generally performed the same duties as firefighters and only directed firefighting in the absence of a superior officer, and did not hire, transfer, lay off, recall, promote, discharge, assign, reward or effectively recommend the same. Firefighters of Brattleboro v. Brattleboro Fire Department, 138 Vt. 347, 415 A.2d 243 (1980).

Fire department captains were not supervisors by reason of fact they implemented the decisions of the chief, particularly in job assignments; assignment of routine duties pursuant to directives and established procedure does not make one a supervisor. Firefighters of Brattleboro v. Brattleboro Fire Department, 138 Vt. 347, 415 A.2d 243 (1980).

3. Review.

Labor Relations Board has a large measure of informed discretion in applying the definition of supervisor in subdivision (13) of this section, and it's decision will not be overturned unless shown to be clearly erroneous. Firefighters of Brattleboro v. Brattleboro Fire Department, 138 Vt. 347, 415 A.2d 243 (1980).

Cited. Vermont State Colleges Faculty Federation v. Vermont State Colleges, 138 Vt. 451, 418 A.2d 34 (1980); Ploof v. Village of Enosburg Falls, 147 Vt. 196, 514 A.2d 1039 (1986); Board of Trustees of Kellogg-Hubbard Library, Inc. v. Labor Relations Board, 162 Vt. 571, 649 A.2d 784 (1994).

§ 1503. Rights of employees; mutual duty to bargain.

  1. Employees shall have the right to self-organization; to form, join, or assist labor organizations; to bargain collectively through representatives of their own choice, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in subsection 1621(a) of this title. An employee who exercises the right not to join the labor organization representing the employee's certified unit pursuant to section 1581 of this title shall, subject to subsection (b) of this section, pay the agency fee to the representative of the bargaining unit in the same manner as employees who pay membership fees to the representative. The labor organization agrees to indemnify and hold the employer harmless from any and all claims stemming from the implementation or administration of the agency fee.
  2. A labor organization shall not charge the agency fee unless it has established and maintained a procedure to provide nonmembers with:
    1. An audited financial statement that identifies the major categories of expenses and divides them into chargeable and nonchargeable expenses.
    2. An opportunity to object to the amount of the agency fee sought, and to place in escrow any amount reasonably in dispute.
    3. Prompt arbitration by an arbitrator selected jointly by the objecting fee payer and the labor organization or pursuant to the rules of the American Arbitration Association to resolve any objection over the amount of the agency fee. The costs of arbitration shall be paid by the labor organization.

      Added 1967, No. 198 , § 3; amended 2013, No. 37 , § 14, eff. June 30, 2013; 2017, No. 74 , § 56.

History

Amendments--2017. Subdiv. (b)(3): Substituted "labor organization" for "teachers' or administrators' organization" preceding "or pursuant" in the first sentence.

Amendments--2013. Added the subsec. (a) designation, substituted "subsection" for "section" preceding "1621(a) of this title" at the end of the first sentence, added the second and third sentences in subsec. (a), and added subsec. (b).

ANNOTATIONS

Cited. Kelley v. Day Care Center, Inc., 141 Vt. 608, 451 A.2d 1106 (1982); In re Vermont State Employees' Association, Inc., 179 Vt. 228, 893 A.2d 333 (December 23, 2005).

§ 1504. General duties.

  1. All employers, their officers, agents, and employees or representatives shall exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, wages, hours of employment, and conditions of work, and to settle all disputes, whether arising out of the application of those agreements or growing out of any dispute between the employer and the employees thereof.
  2. All labor disputes between employers and their employees shall, upon the request of either party, be considered within 15 days of the request, or at such times as may be mutually agreed to, and, if possible, settled, with all expedition, in conference between representatives designated and authorized so to confer, by the employer or by the employees thereof interested in the dispute.  However, this obligation does not compel either party to agree to a proposal or make a concession.

    1967, No. 198 , § 4.

ANNOTATIONS

Cited. Kelley v. Day Care Center, Inc., 141 Vt. 608, 451 A.2d 1106 (1982).

§ 1505. Application.

This chapter shall not apply to any employer or any labor dispute which affects commerce within the meaning of the National Labor Relations Act, as amended, unless the National Labor Relations Board shall have ceded jurisdiction thereof to the Board pursuant to section 10(a) of the Act or shall have declined to assert jurisdiction thereof pursuant to section 14(c) of the Act.

Added 1967, No. 198 , § 17.

History

Reference in text. The National Labor Relations Act, referred to in this section, is codified as 29 U.S.C. § 151 et seq. Sections 10(a) and 14(c) of the act are codified as 29 U.S.C. §§ 160(a) and 164(c), respectively.

ANNOTATIONS

Cited. Vermont State Colleges Faculty Federation v. Vermont State Colleges, 138 Vt. 451, 418 A.2d 34 (1980); Board of Trustees of Kellogg-Hubbard Library, Inc. v. Labor Relations Board, 162 Vt. 571, 649 A.2d 784 (1994).

Subchapter 2. Labor Relations Board

§§ 1541 Repealed. 1975 (Adj. Sess.), No. 152, § 7.

History

Former § 1541. Former § 1541, relating to creation, membership and powers and duties of the state labor relations board, was derived from 1967, No. 198 , § 5.

The subject matter is now covered by §§ 921 and 924 of Title 3.

§ 1542. Repealed. 1975 (Adj. Sess.), No. 152, § 7.

History

Former § 1542. Former § 1542, relating to legal counsel, was derived from 1967, No. 198 , § 6.

The subject matter is now covered by § 923 of Title 3.

§ 1543. Appropriate unit; basis for determination.

  1. The Board shall decide in each case whether, in order to assure the employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purpose of collective bargaining is the employer unit, craft unit, plant unit, or a subdivision thereof.  However, the Board shall not decide that:
    1. A unit is appropriate for those purposes if the unit includes both professional employees and employees who are not professional employees, unless a majority of the professional employees vote for inclusion in the unit.
    2. A craft unit is inappropriate for those purposes on the ground that a different unit has been established by an earlier determination of the Board unless a majority of the employees in the proposed craft unit vote against separate representation.
    3. A unit is appropriate for those purposes if it includes, together with other employees, an individual employed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer's premises.  However, no labor organization may be certified as the representative of employees in a bargaining unit of guards if it admits to membership, or is affiliated directly or indirectly with an organization which admits to membership employees other than guards.
  2. In determining whether a unit is appropriate for the purposes specified in subsection (a) of this section, the extent to which the employees have organized shall not be controlling.

    Added 1967, No. 198 , § 7.

§ 1544. Rules and regulations.

  1. The Board shall have authority from time to time to make, amend, and rescind such rules and regulations, not inconsistent with this chapter, as may be necessary to carry out the provisions of this chapter.
  2. In carrying out this chapter the Board may, under any applicable federal law, rule, or regulation, petition the National Labor Relations Board for an advisory opinion as to whether that agency will assert jurisdiction over a labor dispute which is the subject of a proceeding then pending before the Board.
  3. All findings, conclusions, and determinations of the Board under this chapter shall be public records.

    Added 1967, No. 198 , § 12.

Cross References

Cross references. Access to public records, see § 315 et seq. of Title 1.

Subchapter 3. Elections

§ 1581. Petitions for election; filing, investigations, hearings, determinations.

  1. A petition may be filed with the Board, in accordance with regulations prescribed by the Board:
    1. By an employee or group of employees, or any individual or labor organization acting in their behalf, alleging that not less than 30 percent of the employees;
      1. wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in section 1583 of this title; or
      2. assert that the individual or labor organization which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as defined in section 1583 of this title.
    2. By an employer, alleging that one or more individuals or labor organizations have presented to him or her a claim to be recognized as the representative defined in section 1583 of this title.
  2. The Board shall investigate the petition and if it has reasonable cause to believe that a question of representation exists shall provide for an appropriate hearing before the Board itself, a member thereof, or its agents appointed for that purpose upon due notice.  Written notice of the hearing shall be mailed by certified mail to the parties named in the petition not less than seven days before the hearing.  If the Board finds upon the record of the hearing that a question of representation exists, it shall conduct an election by secret ballot marked at the place of election and certify to the parties, in writing, the results thereof.
  3. In determining whether or not a question of representation exists, it shall apply the same regulations and rules of decision regardless of the identity of the persons filing the petition or the kind of relief sought.
  4. Nothing in this chapter prohibits the waiving of hearings by stipulation for a consent election in conformity with regulations and rules of decision of the Board.
  5. For the purposes of this chapter, representatives of employees of a collective bargaining unit voluntarily recognized by an employer through the voluntary negotiation of an employment contract with such unit shall constitute recognized representatives of the employees until such time as any other representative is recognized under the provisions of this section or until such representatives' authority is rescinded under section 1584 of this title.

    Added 1967, No. 198 , § 8; amended 1973, No. 213 (Adj. Sess.), § 2, eff. April 3, 1974.

History

Amendments--1973 (Adj. Sess.). Subsec. (e): Added.

§ 1582. Election; eligibility to vote, runoff elections.

An election shall not be directed in any bargaining unit or any subdivision within which, in the preceding 12 months, a valid election has been held. Employees engaged in an economic strike who are not entitled to reinstatement are eligible to vote, under regulations of the Board consistent with this Act, in any election conducted within 12 months after the beginning of the strike. In any election where none of the choices on the ballot receive a majority, a runoff shall be conducted by the Board. The ballot shall provide for a selection between the two choices receiving the largest and second largest number of valid votes cast in the election.

Added 1967, No. 198 , § 9.

§ 1583. Powers of representatives.

Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. However, any individual employee or group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective bargaining contract or agreement then in effect, provided that the bargaining representative has been given an opportunity to be present at such adjustment.

Added 1967, No. 198 , § 10.

§ 1584. Petitions and election to rescind representative's authority.

  1. When 30 percent or more of the employees in a bargaining unit covered by an agreement between their employer and a labor organization requiring membership in a labor organization as a condition of employment file a petition alleging that they desire that the authority of the labor organization to make such an agreement be rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof, in writing, to the labor organization and to the employer.
  2. No election may be conducted under this section in a bargaining unit or a subdivision within which in the preceding 12 months a valid election has been held.

    Added 1967, No. 198 , § 11.

§ 1585. Election conduct.

Any interested person may file with the Board a charge that employees eligible to vote in an election under this chapter have been coerced or restrained in the exercise of this right. The Board shall investigate the charge. If, upon the basis of its findings, the Board concludes that employees eligible to vote in the election were so coerced or restrained, the Board may set aside such election and order another election and may begin proceedings under section 1622 of this title. No election shall be set aside unless the Board finds such coercion or restraint.

Added 1967, No. 198 , § 13.

Subchapter 4. Unfair Labor Practices

Cross References

Cross references. Sexual harassment, see § 495h of this title.

§ 1621. Unfair labor practices.

  1. It shall be an unfair labor practice for an employer:
    1. To interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in section 1503 of this title.
    2. To dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it; provided that an employer shall not be prohibited from permitting employees to confer with the employer during working hours without loss of time or pay.
    3. By discrimination in regard to hire and tenure of employment or any term or condition of employment, to encourage or discourage membership in any labor organization.
    4. To discharge or otherwise discriminate against an employee because the employee has filed charges or given testimony under this chapter.
    5. To refuse to bargain collectively with the representatives of the employees subject to the provisions of section 1583 of this chapter.
    6. Nothing in this chapter or any other statute of this State shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection (a) as an unfair labor practice) to require as a condition of employment membership in such labor organization on or after the 30th day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 1583 of this chapter, in the appropriate collective bargaining unit covered by such agreement when made; and (ii) unless following an election held as provided in section 1584 of this chapter within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement. Nothing in this section shall require an employer to discharge an employee in the absence of such an agreement. An employer shall not justify any discrimination against an employee for nonmembership in a labor organization:
      1. if the employer has reasonable grounds for believing that membership was not available to the employee on the same terms and conditions generally applicable to other members; or
      2. if the employer has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.
    7. To discriminate against an employee on account of race, color, creed, religion, sex, sexual orientation, gender identity, national origin, age, or disability.
    8. To solicit persons to replace employees, or fill positions made vacant as the result of a strike, lockout, or other labor dispute, by means of newspaper advertisement, posters, oral or written communications, or otherwise, unless the solicitations state plainly and specifically that a strike, lockout, or other labor dispute exists.
  2. It shall be an unfair labor practice for a labor organization or its agents:
      1. To restrain or coerce employees in the exercise of the rights guaranteed in section 1503 of this title.  However this subdivision shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; or (1) (A) To restrain or coerce employees in the exercise of the rights guaranteed in section 1503 of this title.  However this subdivision shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; or
      2. To restrain or coerce an employer in the selection of representatives for the purposes of collective bargaining or adjustment of grievances.
    1. To cause or attempt to cause an employer to discriminate against an employee in violation of subdivision (a)(3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than the employee's failure to tender the periodic dues and the initiation fees uniformly required as a condition for acquiring or retaining membership.
    2. To refuse to bargain collectively with an employer, provided it is the representative of the employees subject to the provisions of section 1583 of this title.
    3. (i) To engage in, or to induce or encourage any individual employed by any person to engage in, a strike or a refusal in the course of employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person where in either case an object thereof is:
      1. Forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by subsection (c) of this section.
      2. Forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of employees unless such labor organization has been certified as the representative of such employees under the provisions of section 1581 of this title, but this subdivision shall not be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.
      3. Forcing or requiring any employer to recognize or bargain with a particular labor organization as the employee's representative if another labor organization has been certified as the representative of those employees under section 1581 of this title.
      4. Forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work. This subsection (b) shall not be construed to make unlawful a refusal by any person to enter upon the premises of any employer, other than the person's own employer, if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom the employer is required to recognize under this chapter. Nothing in this subdivision shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution.
    4. To require employees covered by the agency fee requirement or other union security agreement authorized under subsection (a) of this section to pay, as a condition precedent to becoming a member of such organization, a fee in an amount which the Board finds excessive or discriminatory under all the circumstances. In making such a finding, the Board shall consider, among other relevant factors, the practices and customs of labor organizations in the particular industry, and the wages currently paid to the employees affected.
    5. To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed or which are not needed or required by the employer.
    6. To picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the employee's representative, or forcing or requiring the employees of an employer to accept or select the labor organization as their collective bargaining representative, unless the labor organization is currently certified as the representative of the employees:
      1. Where the employer has lawfully recognized in accordance with this subchapter any other labor organization and a question concerning representation may not appropriately be raised under section 1581 of this title.
      2. Where within the preceding 12 months a valid election under section 1581 of this title has been conducted.
      3. Where the picketing has been conducted without a petition under section 1581 of this title being filed within 30 days after the picketing began. When such a petition has been filed, the Board shall forthwith, without regard to section 1581 of this title or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof. This subdivision (C) shall not be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of the picketing is to induce any individual employed by any other person in the course of his or her employment, not to pick up, deliver, or transport any goods or not to perform any services. This subdivision (b)(7) shall not be construed to permit any act which would otherwise be an unfair labor practice under this subsection.
    7. Compulsory membership; employees' rights. A labor organization entering into an agreement requiring a person's membership therein as a condition of employment by the employer shall not:
      1. discriminate against a person seeking or holding membership therein on account of race, color, disability, religion, creed, sex, sexual orientation, gender identity, age, or national origin;
      2. penalize a member for exercising a right guaranteed by the Constitution or laws of the United States or the State of Vermont;
      3. cause the discharge from employment of employees who refuse membership therein because of religious beliefs.
  3. It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby the employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting, or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into before or after enactment of this chapter containing such an agreement shall be to that extent unenforceable and void.
  4. The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, oral, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this chapter, if such expression contains no threat of reprisal or force or promise of benefit.
    1. For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached is requested by either party; but the failure or refusal of either party to agree to a proposal, or to change or withdraw a lawful proposal, or to make a concession shall not constitute, or be evidence direct or indirect of, a breach of this obligation. (e) (1)  For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached is requested by either party; but the failure or refusal of either party to agree to a proposal, or to change or withdraw a lawful proposal, or to make a concession shall not constitute, or be evidence direct or indirect of, a breach of this obligation.
    2. Where there is in effect a collective bargaining contract covering employees, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract unless the party desiring such termination or modification:
      1. serves a written notice upon the other party to the contract of the proposed  termination or modification 60 days prior to the expiration date thereof, or in the event such contract contains no expiration date, 60 days prior to the time it is proposed to make such termination or modification;
      2. offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications;
      3. notifies the Chair of the Board within 30 days after such notice of the existence of a dispute, provided no agreement has been reached by the time; and
      4. continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of 60 days after such notice is given or until the expiration date of such contract, whichever occurs later.
    3. The duties imposed upon employers, employees, and labor organizations by subdivisions (e)(2)(B), (C), and (D) shall become inapplicable upon an intervening certification of the Board, under which the labor organization or individual, which is a party to the contract, has been superseded as or ceased to be the representative of the employees subject to the provisions of section 1583 of this title, and the duties so imposed shall not be construed as requiring either party to discuss or agree to any modifications of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract. Any employee who engages in a strike within the 60-day period specified in this subsection shall lose his or her status as an employee for the employer engaged in the particular labor dispute, for the purposes of this chapter, as amended, but such loss of status for such employee shall terminate if and when he or she is re-employed by such employer.
  5. [Repealed.]

    Added 1967, No. 198 , § 14; amended 1969, No. 51 , § 2; 1971, No. 205 (Adj. Sess.), § 3; 1973, No. 184 (Adj. Sess.); 1973, No. 214 (Adj. Sess.), § 24; 1999, No. 19 , § 6; 2007, No. 41 , § 19; 2013, No. 37 , § 15, eff. June 30, 2013.

History

2016 In subdivision (b)(4)(D), substituted "chapter" for "act" following "whom the employer is required to recognize under this" in accordance with 2 V.S.A. § 424.

Revision note - In subdiv. (a)(2), substituted "or" for "of" following "formation" to correct an apparent typographical error.

Amendments--2013. Subdiv. (a)(6): Added second sentence and substituted "an employer shall not" for "no employer shall" preceding "justify" in the third sentence.

Subdiv. (b)(5): Substituted "the agency fee requirement or other" for "a" preceding "union security agreement".

Amendments--2007. Subdivs. (a)(7), (b)(8)(A): Inserted "gender identity" following "sexual orientation".

Amendments--1999. Subsec. (a): Substituted "the employer" for "him" in subdiv. (2); "the employee" for "he" in subdiv. (4); "the" for "his" in subdiv. (5); "the employer" for "he" in subdivs. (6)(A) and (6)(B) and "creed, religion, sex, sexual orientation, national origin, age or disability" for "or creed" at the end of subdiv. (7).

Subdiv. (b)(1)(B): Deleted "his" preceding "representatives".

Subdiv. (b)(2): Substituted "the employee's" for "his".

Subdiv. (b)(3): Substituted "the" for "his".

Subdiv. (b)(4)(i): Deleted "his" preceding "employment".

Subdiv. (b)(4)(i)(B): Deleted "his" preceding "employment" and substituted "subdivision" for "clause (B)".

Subdiv. (b)(4)(i)(C): Inserted "employee's" preceding "representative" and deleted "of his employees" thereafter.

Subdiv. (b)(4)(i)(D): Substituted "the person's" for "his" in the second sentence; substituted "Nothing in this" for "For the purposes of this subdivision (4) only, nothing contained in such" at the beginning of the third sentence.

Subdiv. (b)(7): Inserted "employee's" preceding "representative" and deleted "of his employees" thereafter.

Subdiv. (b)(8): Deleted "his" preceding "employment".

Subdiv. (b)(8)(A): Inserted "disability, religion" following "color".

Amendments--1973 (Adj. Sess.). Subdiv. (a)(8): Added by Act No. 184.

Subsec. (f): Repealed by Act No. 214.

Amendments--1971 (Adj. Sess.). Subsec. (f): Added.

Amendments--1969. Subdiv. (b)(7): Substituted "section 1581" for "section 1582" wherever it appeared.

Subsec. (e): Substituted "section 1583" for "section 1582" in the third paragraph.

ANNOTATIONS

Cited. Vermont State Colleges Faculty Federation v. Vermont State Colleges, 138 Vt. 451, 418 A.2d 34 (1980); Kelley v. Day Care Center, Inc., 141 Vt. 608, 451 A.2d 1106 (1982).

§ 1622. Prevention of unfair labor practices.

  1. The Board may prevent any person from engaging in any unfair labor practice listed in section 1621 of this title.  Whenever a charge is made that any person has engaged in or is engaging in any unfair labor practice, the Board may issue and cause to be served upon such person a complaint stating the charges in that respect and containing a notice of hearing before the Board at a place and time therein fixed at least seven days after the complaint is served.  The Board may amend the complaint at any time before it issues an order based thereon.  No complaint shall issue based on any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, unless the person aggrieved thereby was prevented from filing such charge by reason of service in the U.S. Armed Forces, in which event the six-month period shall be computed from the day of his or her discharge.
  2. The person complained of shall have the right to file an answer to the original or amended complaint and appear in person or otherwise and present evidence in connection therewith at the time and place fixed in the complaint.  In the discretion of the Board, any other person may be permitted to intervene and present evidence in the matter.  Any proceeding under this section shall, so far as practicable, be conducted in accordance with rules of evidence used in the courts of law or equity.  The Board shall provide for the making of a transcript of the testimony presented at the hearing.
  3. The Board shall have power to administer oaths and take testimony under oath relative to the matter of inquiry.  At any hearing ordered by the Board, the Board shall have the power to subpoena witnesses and to demand the production of books, papers, records, and documents for its examination. Officers who serve subpoenas issued by the Board and witnesses attending hearings conducted by the Board shall receive fees and compensation at the same rates as officers and witnesses in causes before the Criminal Division of the Superior Court, to be paid on vouchers of the Board.
  4. If upon the preponderance of the evidence, the Board finds that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, it shall state its findings of fact in writing and shall issue and cause to be served on such person an order requiring him or her to cease and desist from such unfair labor practice, and to take such affirmative action as will carry out the policies of this chapter.  If upon the preponderance of the evidence the Board does not find that the person named in the complaint has engaged in or is engaging in any such unfair labor practice, it shall state its findings of fact in writing and dismiss the complaint.
  5. In determining whether a complaint shall issue alleging a violation of subdivision 1621(a)(1) or (2) of this title, and in deciding such cases, the same regulations and rules of decision shall apply irrespective of whether or not labor organization affected is affiliated with a labor organization national or international in scope.
  6. No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him or her of any back pay, if such individual was suspended or discharged for cause.
  7. Until the record in a case shall have been filed in a court, as hereinafter provided, the Board may at any time, upon reasonable notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any finding or order made or issued by it.

    Added 1967, No. 198 , § 15; amended 2009, No. 154 (Adj. Sess.), § 238.

History

2016. In subsection (d), substituted "chapter" for "act" following "the policies of this" in accordance with 2 V.S.A. § 424.

2003. In subsec. (e), substituted "subdivision 1621(a)(1) or (2)" for "section 1621(a)(1) or 1621(a)(2)" to conform reference to V.S.A. style.

Amendments--2009 (Adj. Sess.). Subsec. (c): Substituted "criminal division of the superior court" for "district court".

ANNOTATIONS

1. Back pay.

Where Labor Relations Board found that an employer had committed an unfair labor practice by firing an employee for her leadership of other employees during a labor dispute, a ruling that was issued two years after the Board's hearings in the case, the Board erred in refusing to consider in its computations of the back pay due her the raises she would have received had she not been illegally discharged, since the Board's decision shifted the cost of its delay from the wrongdoer to the wronged, and thereby not only failed to carry out the policies of this chapter as required by subsection (d) of this section, but thwarted those policies by failing to make whole one injured by the practices proscribed by this chapter. Kelley v. Day Care Center, Inc., 141 Vt. 608, 451 A.2d 1106 (1982).

§ 1623. Judicial review.

  1. The Board may petition the Supreme Court for the enforcement of such Board order relative thereto and for appropriate temporary relief or restraining order.  The Board shall certify and file in the court the entire record in the proceeding, including the pleadings and evidence upon which the order was entered, and its findings and order; provided, however, the court may, by separate rule, set forth the portions of the record to be certified and filed.  Thereupon, the court shall cause notice thereof to be served upon such person, and shall then have jurisdiction of the proceeding and of the question determined therein.  It shall have the power to grant such temporary relief or restraining order as it considers just and proper, and to make and enter a decree enforcing, modifying and enforcing as so modified, or wholly or partly setting aside the Board's order.
  2. The parties before the court shall be the Board and such person found by the Board to have committed the unfair labor practice.
  3. Any aggrieved party to a proceeding under section 1622 of this title may appeal to the Supreme Court under 12 V.S.A. chapter 102 and the Vermont Rules of Appellate Procedure.
  4. No objection that has not been urged before the Board may be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.  The findings of the Board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive.  However, if either party applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such additional evidence at the hearing before the Board, the court may order such additional evidence to be taken before the Board and to be made a part of the record.  The Board may modify its findings as to facts or make new findings because of additional evidence so taken.  The Board shall file such modified or new findings which findings with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive, and shall file its recommendations, if any, for the modification or setting aside of its original order.
  5. The commencement of proceedings under this section shall not, unless specifically ordered by the court, operate as a stay of the Board's order.
  6. Petitions filed under the chapter shall be heard expeditiously.
  7. The Board shall have the power upon issuance of a complaint as provided for under this act to petition the Superior Court within any county wherein the unfair labor practice is alleged to have occurred, for appropriate temporary relief or restraining order.  Upon the filing of such petition the court shall cause notice thereof to be served upon such person, and thereupon, shall have jurisdiction to grant to the Board such temporary relief as it deems just and proper.

    Added 1967, No. 198 , § 16; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2017, No. 74 , § 57.

History

2016. In subsec. (c), substituted "12 V.S.A. chapter 102" for "12 V.S.A. § 2382" to reflect the repeal of 12 V.S.A. § 2382.

Amendments--2017. Subsec. (c): Added "and the Vermont Rules of Appellate Procedure" following "chapter 102".

Amendments--1973 (Adj. Sess.). Subsec. (g): Substituted "Superior" for "county" preceding "court" in the first sentence.

ANNOTATIONS

1. Right of appeal.

State Labor Relations Act (SLRA), which applies to employees in private sector, expressly allows aggrieved party to appeal to Supreme Court from decision in proceeding involving charge of unfair labor practice, 21 V.S.A. § 1623(c), but it does not provide right of appeal in any other type of proceeding. Board of Trustees of Kellogg-Hubbard Library, Inc. v. Labor Relations Board, 162 Vt. 571, 649 A.2d 784 (1994).

§ 1624. Contract ratification; annual vote.

Annually, the employees of the bargaining unit shall meet and discuss whether employees who have chosen not to join the employee organization shall be allowed to vote on the ratification of any collective bargaining agreement entered into pursuant to this chapter. After discussion, employees that are members of the employee organization shall vote on whether to allow employees who have chosen not to join the employee organization to vote on the ratification of any collective bargaining agreement.

Added 2013, No. 37 , § 15a, eff. June 30, 2013.

CHAPTER 20. INDEPENDENT DIRECT SUPPORT PROVIDERS

Sec.

History

Self-determination alliance. 2013, No. 48 , § 2 provides: "(a) There is established a Self-Determination Alliance to advise the State on issues related to stabilizing the independent direct provider workforce and improving the quality of services provided to people with disabilities and elders who manage their services. The alliance shall consist of:

"(1) The Commissioner of Disabilities, Aging, and Independent Living or designee;

"(2) The Commissioner of Health or designee;

"(3) Two service recipients who manage their services under Developmental Disabilities Services, two service recipients who manage their services under Choices for Care Medicaid Waiver, and two recipients who manage their services under Attendant Services Program (ASP), and one service recipient who manages his or her services under the Traumatic Brain Injury Program.

"(4) One family member of a service recipient under Children's Personal Care Program and one family member of a service recipient under Developmental Disabilities Services.

"(b) All initial appointments to the Alliance shall be made on or before August 1, 2013. The chair shall convene the first meeting on or before September 1, 2013. The chair shall be appointed by the Governor from among its members. Members shall serve coterminously and at the pleasure of their appointing authority. A majority of members of the Self-Determination Alliance shall constitute a quorum for the transaction of any business. The Alliance shall be within the Agency of Human Services for administrative purposes only.

"(c) The Self-Determination Alliance shall advise the State regarding issues relating to attracting and retaining a high-quality independent direct support provider workforce to be available to all service recipients, including making recommendations to improve the quality, stability, and availability of the independent direct support provider workforce.

"(d) The Secretary of Human Services shall review the recommendations of the Self-Determination Alliance within 30 days of submission, and shall include the recommendations with his or her input to the Governor's collective bargaining designee."

Sunset of chapter. 2013, No. 48 , § 3 provides: "Sec. 2 of this act shall be repealed on June 30, 2018. Prior to this date, the members of the Self-Determination Alliance shall review the purpose and membership of the Alliance and report its recommendations on the future role of the Alliance to the House Committee on General, Housing and Military Affairs and the Senate Committee on Economic Development, Housing and General Affairs.

§ 1631. Definitions.

As used in this chapter:

  1. "Board" means the State Labor Relations Board established by 3 V.S.A. § 921 .
  2. "Collective bargaining" or "bargaining collectively" means the process by which the State and the exclusive representative of the independent direct support providers negotiate mandatory subjects of bargaining identified in subsection 1634(b) of this chapter, or any other mutually agreed subjects of bargaining not in conflict with State or federal law, with the intent to arrive at an agreement which, when reached, shall be legally binding on all parties.
  3. "Collective bargaining service fee" means a fee deducted by the State from the compensation of an independent direct support provider who is not a member of the exclusive representative of independent direct support providers, which is paid to the exclusive representative. The collective bargaining service fee shall not exceed 85 percent of the amount payable as dues by members of the exclusive representative, and shall be deducted in the same manner as dues are deducted from the compensation of members of the exclusive representative, and shall be used to defray the costs incurred by the labor organization in fulfilling its duty to represent independent direct support providers in their relations with the State.
  4. "Exclusive representative" means the labor organization that has been certified under this chapter and has the right to represent independent direct support providers for the purpose of collective bargaining.
  5. "Grievance" means the exclusive representative's formal written complaint regarding the improper application of one or more terms of the collective bargaining agreement, the failure to abide by any agreement reached, or the discriminatory application of a rule or regulation, which has not been resolved to a satisfactory result through informal discussion with the State.
  6. "Independent direct support provider" means any individual who provides home- and community-based services to a service recipient and is employed by the service recipient, shared living provider, or surrogate.
  7. "Labor organization" means an organization of any kind in which independent direct support providers participate and which exists, in whole or in part, for the purpose of representing independent direct support providers.
  8. "Service recipient" means a person who receives home- and community-based services under the Choices for Care Medicaid waiver, the Attendant Services Program (ASP), the Children's Personal Care Service Program, the Developmental Disabilities Services Program, or any successor program or similar program subsequently established.
  9. "Shared living provider" means a person who operates under a contract with an authorized agency and provides individualized home support for one or two people who live in his or her home. An authorized agency includes a designated agency for developmental services.
  10. "Surrogate" means a service recipient's authorized family member, legal guardian, or a person identified in a written agreement as having responsibility for the care of a service recipient.

    Added 2013, No. 48 , § 1, eff. May 24, 2013.

§ 1632. Rights of independent direct support providers.

Independent direct support providers shall have the right to:

  1. organize, form, join, or assist a labor organization for the purposes of collective bargaining without interference, restraint, or coercion;
  2. bargain collectively through their chosen representatives;
  3. engage in concerted activities for the purpose of supporting or engaging in collective bargaining or other mutual aid or protection;
  4. pursue grievances through the exclusive representative as provided in this chapter; and
  5. refrain from any or all such activities, subject to the requirements of subdivision 1634(b)(3) of this chapter.

    Added 2013, No. 48 , § 1, eff. May 24, 2013.

§ 1633. Rights of the State.

Subject to the rights guaranteed by this chapter and subject to all other applicable laws, rules, and regulations, nothing in this chapter shall be construed to interfere with the right of the State to:

  1. carry out the statutory mandate and goals of the Agency of Human Services and to utilize personnel, methods, and means in the most appropriate manner possible;
  2. with the approval of the Governor, take whatever action may be necessary to carry out the mission of the Agency of Human Services in an emergency situation;
  3. comply with federal and State laws and regulations;
  4. enforce regulations and regulatory processes;
  5. develop regulations and regulatory processes that do not impair existing contracts, subject to the duty to bargain over mandatory subjects of bargaining and to the rulemaking authority of the General Assembly and the Human Services Board; and
  6. solicit and accept for use any grant of money, services, or property from the federal government, the State, or any political subdivision or agency of the State, including federal matching funds, and to cooperate with the federal government or any political subdivision or agency of the State in making an application for any grant.

    Added 2013, No. 48 , § 1, eff. May 24, 2013.

§ 1634. Establishment of limited collective bargaining; scope of bargaining.

  1. Independent direct support providers, through their exclusive representative, shall have the right to bargain collectively with the State, through the Governor's designee, under this chapter.
  2. Mandatory subjects of bargaining under this section shall be limited to:
    1. compensation rates, workforce benefits, and payment methods and procedures, except that independent direct support providers shall not be eligible to participate in the State's retirement system or the Vermont State Employee Health Plan solely by virtue of bargaining under this chapter;
    2. professional development and training, except that the issue of whether the State may choose directly to create and administer a professional development or training program shall be a permissive subject of bargaining;
    3. the collection and disbursement of dues or fees to the exclusive representative, provided that a collective bargaining service fee may not be required of nonmembers unless the exclusive representative has established and maintained a procedure to provide nonmembers with:
      1. an audited financial statement that identifies the major categories of expenses, and divides them into chargeable and nonchargeable expenses; and
      2. an opportunity to object to the amount of the agency fee sought, any amount reasonably in dispute to be placed in escrow, subject to prompt review and determination by the Board to resolve any objection over the amount of the collective bargaining fee, as provided for in subsection (d) of this section;
    4. procedures for resolving grievances against the State, provided that the final step of any negotiated grievance procedure, if required, shall be a hearing and final determination by the Board in accordance with Board rules and regulations; and
    5. access to job referral opportunities within covered programs, except that the issue of whether the State may choose directly to create and administer a referral registry shall be a permissive subject of bargaining.
  3. For the purpose of this chapter, the obligation to bargain collectively is the performance of the mutual obligation of the State and the exclusive representative of the independent direct support providers to meet at reasonable times and confer in good faith with respect to all matters bargainable under the provisions of this chapter; but the failure or refusal of either party to agree to a proposal, or to change or withdraw a lawful proposal, or to make a concession shall not constitute, or be evidence of direct or indirect, a breach of this obligation. Nothing in this chapter shall be construed to require either party during collective bargaining to accede to any proposal or proposals of the other party.
  4. Any dispute raised by a nonmember concerning the amount of a collective bargaining service fee, as provided for under subdivision (b)(3) of this section, may be grieved to the State Labor Relations Board which shall review and determine such matter promptly, in accordance with the Board's rules.

    Added 2013, No. 48 , § 1, eff. May 24, 2013.

§ 1635. Election; bargaining unit.

  1. Petitions and elections shall be conducted pursuant to the procedures provided in 3 V.S.A. §§ 941 and 942, except that only one bargaining unit shall exist for independent direct support providers, and the exclusive representative shall be the exclusive representative for the purpose of grievances.
  2. A representation election for independent direct support providers conducted by the Board shall be by mail ballot.
  3. The bargaining unit for purposes of collective bargaining pursuant to this chapter shall be one statewide unit of independent direct support providers. Eligible independent direct support providers shall have the right to participate in a representation election but shall not have the right to vote on or otherwise determine the collective bargaining unit. Eligible independent direct support providers shall all be independent direct support providers who have been paid for providing home- and community-based services within the previous 180 days.
  4. At least quarterly the State shall compile and maintain a list of names and addresses of all independent direct support providers who have been paid for providing home- and community-based services to service recipients within the previous 180 days. The list shall not include the names of any recipient, or indicate that an independent direct support provider is a relative of a recipient or has the same address as a recipient. The State shall, upon request, provide within seven days the most recent list of independent direct support providers in its possession to any organization which has as one of its primary purposes the collective bargaining representation of independent direct support providers in their relations with State or other public entities. This obligation shall include providing the most recent list, upon request, to any labor organization certified as the exclusive representative under this chapter.

    Added 2013, No. 48 , § 1, eff. May 24, 2013.

§ 1636. Mediation; fact-finding; last best offer.

  1. If, after a reasonable period of negotiation, the representative of the collective bargaining unit and the State reach an impasse, the Board, upon petition of either party, may authorize the parties to submit their differences to mediation. Within five days after receipt of the petition, the Board shall appoint a mediator who shall communicate with the parties and attempt to mediate an amicable settlement. A mediator shall be of high standing and not actively connected with labor or management.
  2. If, after a reasonable period of time, no fewer than 15 days after the appointment of a mediator, the impasse is not resolved, the mediator shall certify to the Board that the impasse continues.
  3. The Board shall appoint a fact finder who has been mutually agreed upon by the parties. If the parties fail to agree on a fact finder within five days, the Board shall appoint a neutral third party to act as a fact finder pursuant to rules adopted by the Board. A member of the Board or any individual who has actively participated in mediation proceedings for which fact-finding has been called shall not be eligible to serve as a fact finder under this section, unless agreed upon by the parties.
  4. The fact finder shall conduct hearings pursuant to rules of the Board. Upon request of either party or of the fact finder, the Board may issue subpoenas of persons and documents for the hearings and the fact finder may require that testimony be given under oath and may administer oaths.
  5. Nothing in this section shall prohibit the fact finder from endeavoring to mediate the dispute at any time prior to issuing recommendations.
  6. The fact finder shall consider the following factors in making a recommendation:
    1. the needs and welfare of consumers, including their interest in greater access to quality services;
    2. the nature and needs of the personal care assistance program;
    3. the interest and welfare of independent direct support providers;
    4. the history of negotiation between the parties, including those leading to the proceedings;
    5. changes in the cost of living; and
    6. generally accepted labor-management relations practices in Vermont.
  7. Upon completion of the hearings provided in subsection (d) of this section, the fact finder shall file written findings and recommendations with both parties.
  8. The costs of witnesses and other expenses incurred by either party in fact-finding proceedings shall be paid directly by the parties incurring them, and the costs and expenses of the fact finder shall be divided equally by the parties. The fact finder shall be paid a rate mutually agreed upon by the parties for each day or any part of a day while performing fact-finding duties and shall be reimbursed for all reasonable and necessary expenses incurred in the performance of his or her duties. A statement of fact-finding per diem and expenses shall be certified by the fact finder and submitted to the Board for approval. The Board shall provide a copy of approved fact-finding costs to each party with its order apportioning half of the total to each party for payment. Each party shall pay its half of the total within 15 days after receipt of the order. Approval by the Board of fact-finding and the fact finder's costs and expenses and its order for payment shall be final as to the parties.
  9. If the dispute remains unresolved 20 days after transmittal of findings and recommendations, each party shall submit to the Board its last best offer on all disputed issues as a single package. Each party's last best offer shall be certified to the Board by the fact finder. The Board may hold hearings and consider the recommendations of the fact finder. Within 30 days of the certifications, the Board shall select between the last best offers of the parties, considered in their entirety without amendment, and shall determine its cost. The Board shall not issue an order under this subsection that: (1) is in conflict with any statute; (2) is in conflict with any rule unless the rule relates to a mandatory subject of bargaining; or (3) determines an issue that is not a mandatory subject of bargaining. The Board shall determine the cost of the agreement selected and recommend to the General Assembly its choice with a request for appropriation. If the General Assembly appropriates sufficient funds, the agreement shall become effective and legally binding at the beginning of the next fiscal year. If the General Assembly appropriates a different amount of funds, the terms of the agreement affected by that appropriation shall be renegotiated based on the amount of funds actually appropriated by the General Assembly, and the agreement with the negotiated changes shall become effective and binding at the beginning of the next fiscal year. No portion of any agreement shall become effective separately without the mutual consent of the parties.

    Added 2013, No. 48 , § 1, eff. May 24, 2013.

§ 1637. General duties and prohibited conduct.

  1. The State and the independent direct support providers and their representatives shall make every reasonable effort to make and maintain agreements concerning matters allowed under this chapter and to settle all disputes, whether arising out of the application of those agreements or disputes concerning the agreements. All disputes shall, upon request of either party, be considered within 15 days of the request or at such times as may be mutually agreed to and if possible settled with all expedition in conference between representatives designated and authorized to confer by the State or the independent direct support providers. This obligation does not compel either party to make any agreements or concessions.
  2. It shall be an unfair labor practice for the State to:
    1. interfere with, restrain, or coerce independent direct support providers in the exercise of their rights under this chapter or by any law, rule, or regulation;
    2. dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it;
    3. discriminate in regard to referral practices or eligibility for work opportunities within covered programs for an independent direct support provider, or to encourage or discourage membership in any labor organization;
    4. take negative action against an independent direct support provider because the provider has taken actions demonstrating his or her support for a labor organization, including signing a petition, grievance, or affidavit or giving testimony under this chapter;
    5. refuse to bargain collectively in good faith with the exclusive representative;
    6. discriminate against an independent direct support provider based on race, color, creed, religion, age, gender, sexual orientation, gender identity, or national origin, or because the provider is a qualified individual with a disability.
  3. It shall be an unfair labor practice for a labor organization to:
    1. Restrain or coerce independent direct support providers in the exercise of the rights guaranteed them by law, rule, or regulation. However, a labor organization may prescribe its own rules with respect to the acquisition or retention of membership, provided such rules are not discriminatory.
    2. Refuse to bargain collectively in good faith with the State.
    3. Cause, or attempt to cause, the State to discriminate against an independent direct support provider in violation of subsection (b) of this section.
    4. Threaten to or cause a provider to strike or curtail the provider's services in recognition of a picket line of any employee or labor organization.
  4. An independent direct support provider shall not strike or curtail his or her services in recognition of a picket line of any employee or labor organization.

    Added 2013, No. 48 , § 1, eff. May 24, 2013.

§ 1638. Prevention of unfair practices.

  1. The Board may prevent the State or a labor organization from engaging in any unfair labor practice listed in section 1637 of this title. Whenever a charge is made that the State or a labor organization has engaged in or is engaging in any unfair labor practice, the Board may issue and cause to be served upon that party a complaint stating the charges in that respect and containing a notice of hearing before the Board at a place and time therein fixed at least seven days after the complaint is served. The Board may amend the complaint at any time before it issues an order based thereon. No complaint shall issue based on any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the party against whom such charge is made, unless the person aggrieved thereby was prevented from filing the charge by reason of service in the U.S. Armed Forces, in which event the six-month period shall be computed from the day of his or her discharge.
  2. The party complained of shall have the right to file an answer to the original or amended complaint and appear in person or otherwise and present evidence in connection therewith at the time and place fixed in the complaint. In the discretion of the Board, any other person may be permitted to intervene and present evidence in the matter. Any proceeding under this section shall, so far as practicable, be conducted in accordance with rules of evidence used in the courts. The Board shall provide for the making of a transcript of the testimony presented at the hearing.
  3. The Board shall have power to administer oaths and take testimony under oath relative to the matter of inquiry. At any hearing ordered by the Board, the Board shall have the power to subpoena witnesses and to demand the production of books, papers, records, and documents for its examination. Officers who serve subpoenas issued by the Board and witnesses attending hearings conducted by the Board shall receive fees and compensation at the same rates as officers and witnesses in causes before a Criminal Division of the Superior Court, to be paid on vouchers of the Board.
  4. If upon the preponderance of the evidence, the Board finds that any party named in the complaint has engaged in or is engaging in any such unfair labor practice, it shall state its finding of fact in writing and shall issue and cause to be served on that party an order requiring him or her to cease and desist from the unfair labor practice, and to take such affirmative action as will carry out the policies of this chapter. If upon the preponderance of the evidence, the Board does not find that the party named in the complaint has engaged in or is engaging in any unfair labor practice, it shall state its findings of fact in writing and dismiss the complaint.
  5. In determining whether a complaint shall issue alleging a violation of subsection 1637(b) or (c) of this title, and in deciding those cases, the same regulations and rules of decision shall apply irrespective of whether or not a labor organization affected is affiliated with a labor organization national or international in scope.

    Added 2013, No. 48 , § 1, eff. May 24, 2013.

§ 1639. Negotiated agreement; funding.

  1. If the State and the exclusive representative reach an agreement, the Governor shall request from the General Assembly an appropriation sufficient to fund the agreement in the next operating budget. If the General Assembly appropriates sufficient funds, the negotiated agreement shall become effective and binding at the beginning of the next fiscal year. If the General Assembly appropriates a different amount of funds, the terms of the agreement affected by that appropriation shall be renegotiated based on the amount of funds actually appropriated by the General Assembly and shall become effective and legally binding in the next fiscal year.
  2. Collective bargaining agreements shall be for a maximum term of two years and shall not be subject to cancellation or renegotiation during the term except with the mutual consent in writing of both parties, which consent shall be filed with the Board. Upon the filing of such consent, an agreement may be supplemented, cancelled, or renegotiated.
  3. The agreement shall terminate at the expiration of its specified term. Negotiations for a new agreement to take effect upon the expiration of the preceding agreement shall be commenced at any time within one year next preceding the expiration date upon the request of either party and may be commenced at any time previous thereto with the consent of both parties.
  4. In the event the State of Vermont and the collective bargaining unit are unable to arrive at an agreement and there is not an existing agreement in effect, the existing contract shall remain in force until a new contract is ratified by the parties. However, nothing in this subsection shall prohibit the parties from agreeing to a modification of certain provisions of the existing contract which, as amended, shall remain in effect until a new contract is finalized and funded by the General Assembly.
  5. The Board is authorized to enforce compliance with all provisions of a collective bargaining agreement upon complaint of either party. In the event a complaint is made by either party to an agreement, the Board shall proceed in the manner prescribed in section 1638 of this title relating to the prevention of unfair labor practices.

    Added 2013, No. 48 , § 1, eff. May 24, 2013.

§ 1640. Rights unaltered.

  1. A collective bargaining agreement shall not infringe upon any rights of service recipients or their surrogates to hire, direct, supervise, or discontinue the employment of any particular independent direct support provider.
  2. Nothing in this section shall alter the rights and obligations of private sector employers and employees under the National Labor Relations Act, 29 U.S.C. § 151 et seq.
  3. Independent direct support providers shall not be considered State employees for purposes other than collective bargaining, including for purposes of joint or vicarious liability in tort or the limitation on liability in subsection (e) of this section. Independent direct support providers shall not be eligible for participation in the State Employee Retirement System or health care plan solely by virtue of bargaining under this chapter. Nothing in this chapter shall require the State to alter its current practice with respect to independent direct support providers of making payments regarding Social Security and Medicare taxes, federal or State unemployment contributions, or workers' compensation insurance.
  4. Nothing in this chapter shall infringe upon the right of the Judiciary and the General Assembly to make programmatic modifications to the delivery of State services through subsidy or other programs.
  5. The State and its employees shall not be vicariously liable for any act or omission by an independent direct support provider or any claim arising out of the employment relationship between a service recipient and an independent direct service provider, nor shall the State be liable as a joint employer.

    Added 2013, No. 48 , § 1, eff. May 24, 2013.

§ 1641. Rules and regulations.

The Board shall make and may amend and rescind and adopt such rules and regulations consistent with this chapter as may be necessary to carry out the provisions of this chapter.

Added 2013, No. 48 , § 1, eff. May 24, 2013.

§ 1642. Appeal.

  1. Any person aggrieved by an order or decision of the Board issued under the authority of this chapter may appeal on questions of law to the Supreme Court.
  2. An order of the Board shall not automatically be stayed pending appeal. A stay must first be requested from the Board. The Board may stay the order or any part of it. If the Board denies a stay, then a stay may be requested from the Supreme Court. The Supreme Court or a single Justice may stay the order or any part of it and may order additional interim relief.

    Added 2013, No. 48 , § 1, eff. May 24, 2013.

§ 1643. Enforcement.

  1. Orders of the Board issued under this chapter may be enforced by any party or by the Board by filing a petition with the Civil Division of the Superior Court of Washington County or in the Civil Division of the Superior Court in the county in which the action before the Board originated. The petition shall be served on the adverse party as provided for service of process under the Vermont Rules of Civil Procedure. If, after hearing, the court determines that the Board had jurisdiction over the matter and that a timely appeal was not filed or that an appeal was timely filed and a stay of the Board order or any part of it was not granted or that a Board order was affirmed on appeal in pertinent part by the Supreme Court, the court shall incorporate the order of the Board as a judgment of the court. There is no appeal from that judgment except that a judgment reversing a Board decision on jurisdiction may be appealed to the Supreme Court.
  2. Upon filing of a petition by a party or the Board, the court may grant such temporary relief, including a restraining order, as it deems proper pending formal hearing.
  3. Orders and decisions of the Board shall apply only to the particular case under appeal, but any number of appeals presenting similar issues may be consolidated for hearing with the consent of the Board. The Board shall not modify, add to, or detract from a collective bargaining agreement by any order or decision.

    Added 2013, No. 48 , § 1, eff. May 24, 2013.

§ 1644. Antitrust exemption.

The activities of independent direct support providers and their exclusive representative that are necessary for the exercise of their rights under this chapter shall be afforded State action immunity under applicable federal and State antitrust laws. The State intends that the "State action" exemption to federal antitrust laws be available only to the State, to independent direct support providers, and to their exclusive representative in connection with these necessary activities. Exempt activities shall be actively supervised by the State.

Added 2013, No. 48 , § 1, eff. May 24, 2013.

§ 1645. Automatic membership dues deduction.

Independent direct support providers who are members of the labor organization shall have the right to automatic membership dues deductions. Upon receipt of a signed authorization to commence automatic membership dues deductions from an independent direct support provider, the State shall, as soon as practicable and in any event, not later than 30 calendar days after receiving the authorization, commence withholding from the independent direct support provider's wages the amount of membership dues certified by the labor organization. The State shall transmit the amount withheld to the labor organization on the same day as the independent direct support provider is paid. Nothing in this section shall be construed to require a member of a labor organization to participate in automatic dues deduction.

Added 2019, No. 180 (Adj. Sess.), § 7, eff. Jan. 1, 2021.

§ 1646. Annual list of independent direct support providers in bargaining unit.

  1. Annually, or on a more frequent basis if mutually agreed to by the State and the exclusive representative, the State shall provide the exclusive representative of the independent direct support providers with a list of all independent direct support providers in the bargaining unit.
    1. The list shall include, as appropriate, each independent direct support provider's name, work location, job classification, and contact information. As used in this section, "contact information" includes an independent direct support provider's home address, personal e-mail address, and home and personal cellular telephone numbers to the extent that the State is in possession of such information. (b) (1)  The list shall include, as appropriate, each independent direct support provider's name, work location, job classification, and contact information. As used in this section, "contact information" includes an independent direct support provider's home address, personal e-mail address, and home and personal cellular telephone numbers to the extent that the State is in possession of such information.
    2. The list shall not include the name of any recipient or indicate that an independent direct support provider is a relative of a recipient or has the same address as a recipient.
  2. To the extent possible, the list shall be in alphabetical order by last name and provided in electronic format.
  3. The list shall be kept confidential by the State and the exclusive representative and shall be exempt from copying and inspection under the Public Records Act.

    Added 2019, No. 180 (Adj. Sess.), § 18, eff. Jan. 1, 2021.

CHAPTER 21. COLLECTIVE BARGAINING IN CERTAIN PUBLIC EMPLOYMENT

Sec.

§§ 1701-1710. Repealed. 1973, No. 111, § 2.

History

Former §§ 1701-1710. The subject matter of former §§ 1701-1710 is now covered by § 1721 et seq. of this title.

Former § 1701, relating to purpose, was derived from 1967, No. 198 , § 29.

Former § 1702, relating to definitions, was derived from 1967, No. 198 , § 30; and amended by 1969, No. 230 (Adj. Sess.), § 1.

Former § 1703, relating to rights and restrictions of public employers and public employees, was derived from 1967, No. 198 , § 31; and amended by 1969, No. 230 (Adj. Sess.), § 2.

Former § 1704, relating to restrictions on strikes and recognition of picket lines, was derived from 1967, No. 198 , § 32.

Former § 1705, relating to mediation and arbitration, was derived from 1967, No. 198 , § 33.

Former § 1706, relating to firefighters' agreements and rights, was derived from 1969, No. 230 (Adj. Sess.), § 3; and previously repealed by 1971, No. 65 , § 1.

Former § 1707, relating to impasse procedure, was derived from 1969, No. 230 (Adj. Sess.), § 4.

Former § 1708, relating to hearing, findings and order of arbitrators, was derived from 1969, No. 230 (Adj. Sess.), § 5.

Former § 1709, relating to basis of arbitrators' decision, was derived from 1969, No. 230 (Adj. Sess.), § 6.

Former § 1710, relating to duration of agreements, was derived from 1969, No. 230 (Adj. Sess.), § 7.

CHAPTER 22. VERMONT MUNICIPAL LABOR RELATIONS ACT

Sec.

History

Revision note. This chapter was enacted as "chapter 20" but was renumbered "chapter 22" to conform to V.S.A. classification and style.

Law Review Commentaries The Negotiating Impasse in Labor Relations for Teachers, see 5 Vt. L. Rev. 40 (1980).

Effective date of certain 2013 amendments. Amendments contained in 2013, No. 37 , § 20, shall take effect June 30, 2013 and apply to employees covered by this chapter on the date following the expiration date stated in any collective bargaining agreement then in effect. If no collective bargaining agreement is in effect on June 30, 2013 the act shall take effect July 1, 2013.

Cross References

Cross references. Labor Relations Act applicable to employment in the private sector, see § 1501 et seq. of this title.

Labor relations for teachers, see 16 V.S.A. § 1981 et seq.

Municipal employee's retirement system, see 24 V.S.A. § 5051 et seq.

Sexual harassment, see § 495h of this title.

State Employees Labor Relations Act, see 3 V.S.A. § 901 et seq.

ANNOTATIONS

1. Construction with other laws.

State Labor Relations Act (SLRA), State Employees Labor Relations Act (SELRA), and Municipal Employees Relations Act (MERA) are closely related and, therefore, should be considered in pari materia as part of one system intended to oversee labor relations. Board of Trustees of Kellogg-Hubbard Library, Inc. v. Labor Relations Board, 162 Vt. 571, 649 A.2d 784 (1994).

It would not make sense to afford aggrieved parties right to appeal from Labor Relations Board (LRB) orders in all proceedings under State Employee Labor Relations Act (SELRA) and Municipal Employees Relations Act (MERA), but to force parties to use indirect appeal route under V.R.C.P. 75 to appeal from LRB orders in identical proceedings under State Labor Relations Act. Board of Trustees of Kellogg-Hubbard Library, Inc. v. Labor Relations Board, 162 Vt. 571, 649 A.2d 784 (1994).

Only reasonable interpretation of purpose behind 1976 amendment to State Labor Relations Act (SLRA), State Employee Labor Relations Act (SELRA), and Municipal Employees Relations Act (MERA) is that legislature intended to consolidate general powers and procedures of Labor Relations Board in SELRA and to apply them to proceedings in each of three labor-relations statutes, while leaving intact particular procedures expressly provided for in SLRA and MERA. Board of Trustees of Kellogg-Hubbard Library, Inc. v. Labor Relations Board, 162 Vt. 571, 649 A.2d 784 (1994).

Although 3 V.S.A. § 924(d) of State Employee Labor Relations Act (SELRA) requires Labor Relations Board (LRB) to exercise all powers and follow procedures set forth in SLRA and Municipal Employees Relations Act (MERA), neither SLRA nor MERA includes all of general powers necessary to carry out LRB's responsibilities under those statutes. Board of Trustees of Kellogg-Hubbard Library, Inc. v. Labor Relations Board, 162 Vt. 571, 649 A.2d 784 (1994).

Legislature intended to afford aggrieved parties right to appeal to Supreme Court from final decisions in all types of proceedings under each of three statutes administered by Labor Relations Board (State Labor Relations Act (SLRA), State Employee Labor Relations Act (SELRA), and Municipal Employees Relations Act (MERA)). Board of Trustees of Kellogg-Hubbard Library, Inc. v. Labor Relations Board, 162 Vt. 571, 649 A.2d 784 (1994).

§ 1721. Purpose.

This chapter shall be known as the Vermont Municipal Employee Relations Act. It is the purpose and policy of this chapter to prescribe the legitimate rights of both municipal employees and municipal employers in their relations with each other; to provide orderly and peaceful procedures for preventing the interference by either with the legitimate rights of the other; to protect the rights of individual employees to self-organization; to allow individuals to form, join, or assist employee organizations and to bargain collectively; to define and proscribe practices on the part of employee organizations and municipal employers which are harmful to the general welfare; and to protect the rights of the public in connection with labor disputes.

Added 1973, No. 111 , § 1.

ANNOTATIONS

Cited. Weissenstein v. Burlington Board of School Commissioners, 149 Vt. 288, 543 A.2d 691 (1988); Board of Trustees of Kellogg-Hubbard Library, Inc. v. Labor Relations Board, 162 Vt. 571, 649 A.2d 784 (1994); Harwood Union High School District v. Harwood Education Ass'n, 172 Vt. 167, 773 A.2d 277 (2000).

§ 1722. Definitions.

As used in this chapter:

  1. "Agency service fee" means a fee deducted by an employer from the salary or wages of an employee who is not a member of an employee organization, which is paid to the employee organization that is the exclusive bargaining agent for the bargaining unit of the employee. An agency service fee shall not exceed 85 percent of the amount payable as dues by members of the employee organization and shall be deducted in the same manner as dues are deducted from the salary or wages of members of the employee organization and shall be used to defray the costs of chargeable activities.
  2. "Board" means the State Labor Relations Board established under 3 V.S.A. § 921 .
  3. "Bargaining unit" means a group of employees recognized by the municipal employer or certified by the Board as appropriate for exclusive representation by an employee organization for purposes of collective bargaining.
  4. "Collective bargaining" or "bargaining collectively" means the process of negotiating in good faith the wages, hours, or conditions of employment between a municipal employer and the exclusive bargaining agent of employees with the intent to arrive at an agreement that, when reached, shall be reduced to writing.
  5. "Commissioner" means the Commissioner of Labor.
  6. "Confidential employee" means an employee whose responsibility or knowledge or access to information relating to collective bargaining, personnel administration, or budgetary matters would make membership in or representation by an employee organization incompatible with his or her official duties.
  7. "Employee" means a municipal employee as defined in this section.
  8. "Exclusive bargaining agent" means the employee organization certified by the Board or recognized by the employer as the only organization to bargain collectively for all employees in the bargaining unit, including persons who are not members of the employee organization.
  9. "Impasse" means a controversy concerning wages, hours, and conditions of employment arising from the inability of a municipal employer and an exclusive bargaining agent to reach agreement after both parties have bargained collectively in good faith for not less than 60 days.
  10. "Legislative body" means the mayor (or other chief executive officer) and board of aldermen of a city, the selectboard of a town, the trustees of a village, the trustees or prudential committee of a district, the school board of a school district, or the designated governing body of any other political subdivision of the State.
  11. "Managerial prerogative" means any nonbargainable matters of inherent managerial policy.
  12. "Municipal employee" means any employee of a municipal employer, including a municipal school employee or a professional employee as defined in subdivision 1502(11) of this title, except:
    1. elected officials, board and commission members, and executive officers;
    2. individuals employed as supervisors as defined by section 1502 of this title;
    3. individuals who have been employed on a probationary status;
    4. confidential employees as defined in this section;
    5. certified employees of school districts, except as otherwise provided in section 1735 of this title.
  13. "Municipal employer" means a city, town, village, fire district, lighting district, consolidated water district, housing authority, union municipal district, or any of the political subdivisions of the State of Vermont that employs five or more employees as defined in this section.
  14. "Person" means one or more individuals, a city, town, village, or any other political subdivision of the State of Vermont, employee organizations, partnerships, corporations, legal representatives, trustees, or any other natural or legal entity whatsoever.
  15. "Voluntary recognition" means formal acknowledgment by a municipal employer designating a particular employee organization as the exclusive bargaining agent for municipal employees in an appropriate bargaining unit.
  16. "Strike" means conduct by an employee or employee organization or its agents that produces, induces, or encourages a work stoppage, slowdown, or withholding of services; such conduct includes recognizing a picket line or other conduct that interferes with or impedes the orderly functions and services of a municipal employer.
  17. "Wages, hours, and other conditions of employment" means any condition of employment directly affecting the economic circumstances, health, safety, or convenience of employees but excluding matters of managerial prerogative as defined in this section. For collective bargaining related to municipal school employees, "wages, hours, and other conditions of employment" shall not include health care benefits or coverage other than stand-alone vision and dental benefits.
  18. "School board negotiations council" means, for a supervisory district, its school board, and, for school districts within a supervisory union, the body comprising representatives designated by each school board within the supervisory union and by the supervisory union board to engage in collective bargaining with their school employees' negotiations council.
  19. "School employees' negotiations council" means the body comprising representatives designated by each exclusive bargaining agent within a supervisory district or supervisory union to engage in collective bargaining with its school board negotiations council.
  20. "Supervisory district" and "supervisory union" shall have the same meaning as in 16 V.S.A. § 11 .
  21. "Municipal school employee" means an employee of a supervisory union or school district who is not otherwise subject to 16 V.S.A. chapter 57 (labor relations for teachers and administrators) and who is not otherwise excluded pursuant to subdivision (12) of this section.
  22. "Municipal public safety employee" means a municipal employee who is:
    1. a firefighter as defined in 20 V.S.A. § 3151(3) ;
    2. an ambulance service, emergency medical personnel, or first responder service as defined in 24 V.S.A. § 2651 ; or
    3. a law enforcement officer who has been certified by the Vermont Criminal Justice Council pursuant to 20 V.S.A. § 2358 .

      Added 1973, No. 111 , § 1; amended 1975, No. 113 , § 1; 1975, No. 152 (Adj. Sess.), § 6; 1989, No. 215 (Adj. Sess.); 2003, No. 122 (Adj. Sess.), § 85b; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2007, No. 82 , § 39; 2009, No. 153 (Adj. Sess.), § 14; 2013, No. 37 , § 16, eff. June 30, 2013; 2013, No. 56 , § 25, eff. May 30, 2013; 2013, No. 92 (Adj. Sess.), § 305, eff. Feb. 14, 2014; 2013, No. 161 (Adj. Sess.), § 72; 2018, No. 11 (Sp. Sess.), § H.21, eff. Jan. 1, 2020; 2019, No. 61 , § 23.

History

2020. In subdiv. (22)(C), substituted "Vermont Criminal Justice Council" for "Vermont Criminal Justice Training Council" in accordance with 2019, No. 166 (Adj. Sess.), § 2(b).

2014. Subdiv. (10): In subdiv. (22)(C), substituted "selectboard" for "board of selectmen" in accordance with 2013, No. 161 , (Adj. Sess.), § 72.

2003. At the end of subdiv. (12)(D), substituted a semicolon for a period to conform to V.S.A. style.

Amendments--2019. Subdiv. (22): Added.

Amendments--2018 (Sp. Sess.). Subdiv. (12): Inserted "a municipal school employee or" following "including".

Subdiv. (17): Added the last sentence.

Subdiv. (21): Added.

Amendments--2013 (Adj. Sess.) Subdiv. (18): Act No. 92 inserted "and by the supervisory union board" preceding "to engage in" .

Amendments--2013. Act No. 37 substituted "As used in this chapter" for "For the purposes of this chapter" in the introductory paragraph and rewrote subdiv. (1).

Act No. 56 inserted "and by the supervisory union board" preceding "to engage in" in subdiv. (18).

Amendments--2009 (Adj. Sess.). Subdivs. (18), (19): Amended generally.

Amendments--2007. Subdivs. (18)-(20): Added.

Amendments--2005 (Adj. Sess.) Subdiv. (5): Substituted "commissioner of labor" for "commissioner of labor and industry".

Amendments--2003 (Adj. Sess.). Subdiv. (13): Inserted ", union municipal district," following "housing authority".

Amendments--1989 (Adj. Sess.). Subdiv. (12)(C): Amended generally.

Amendments--1975 (Adj. Sess.). Subdiv. (2): Added "established under section 921 of Title 3".

Amendments--1975. Subdiv. (12)(E): Added "except as otherwise provided in section 1735 of this title".

2019, No. 61 , § 24, provided that the amendment to this section by section 23 of the act shall apply to contract negotiations that begin on or after July 1, 2019.

Effective date and applicability of 2018 (Sp. Sess.) amendment. 2018, No. 11 (Sp. Sess.), § H.31(a)(6) provides: "Secs. H.19-H.22 (subjects for collective bargaining) [which amended this section and 16 V.S.A. §§ 2004 and 2005 and 21 V.S.A. § 1725] shall take effect on January 1, 2020 and shall apply to all collective bargaining agreements between a supervisory union or school district and school employees that take effect on or after that date."

ANNOTATIONS

Analysis

1. Confidential employees.

In determining whether administrative assistants working for school district were "confidential employees," Labor Relations Board was not bound by testimony of administrators that they could not rely on the undivided loyalty of assistants if they were included in bargaining unit; notwithstanding the district's claims to the contrary, the Board did address administrators' concerns by noting either the limited extent of the assistants' access to confidential information or the diluted impact of their access to information that was already known or available to the association. Harwood Union High School District v. Harwood Education Ass'n, 172 Vt. 167, 773 A.2d 277 (2000).

In determining whether administrative assistants working for school district were "confidential employees," Labor Relations Board did not err by evaluating the assistants' duties solely on the basis of evidence of tasks actually performed as of the date of the hearing. Harwood Union High School District v. Harwood Education Ass'n, 172 Vt. 167, 773 A.2d 277 (2000).

In determining whether administrative assistants working for school district were "confidential employees," Labor Relations Board did not err by addressing the separate components of the assistants' duties concerning personnel administration, the budgetary process, and collective bargaining, without considering those duties in their totality; presumably, the district addressed each of the three areas individually because subdivision (6) of this section explicitly refers to those three areas. Harwood Union High School District v. Harwood Education Ass'n, 172 Vt. 167, 773 A.2d 277 (2000).

In determining whether administrative assistants working for school district were "confidential employees," Labor Relations Board did not err by requiring the district to demonstrate that the assistants' access to confidential information would adversely affect its conduct of labor relations. Harwood Union High School District v. Harwood Education Ass'n, 172 Vt. 167, 773 A.2d 277 (2000).

The word "incompatible" in subdivision (6) of this section means more than not working well together; in its proper context, the definition requires the Board to accommodate and balance both the employer's interest in protecting its bargaining position and the employee's interest in bargaining collectively. Harwood Union High School District v. Harwood Education Ass'n, 172 Vt. 167, 773 A.2d 277 (2000).

In determining whether an employee acts in a confidential capacity and thus should be excluded from a bargaining unit, both the Labor Relations Board and the Supreme Court look for guidance to the federal "labor-nexus test," which excludes only those employees who act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations. Harwood Union High School District v. Harwood Education Ass'n, 172 Vt. 167, 773 A.2d 277 (2000).

The Labor Relations Board is entitled to a large measure of informed discretion in determining whether an employee is a confidential employee under subdivision (6) of this section and thus exempted from inclusion in a collective bargaining unit. In re Local 1201, AFSCME, 143 Vt. 512, 469 A.2d 1176 (1983).

Decision of the Labor Relations Board, that the position of dispatcher in the Department of Public Works was that of a confidential employee under subdivision (6) of this section and thus would not be added to the bargaining unit for employees of the Department, was clearly erroneous as a matter of law, since the duties of the dispatcher were essentially clerical and routine, the Board acknowledged that it was unnecessary for the dispatcher to have access to any confidential files concerning union-related matters and made no finding that the dispatcher assisted or acted in a confidential capacity to persons who exercised a managerial function in the field of labor relations. In re Local 1201, AFSCME, 143 Vt. 512, 469 A.2d 1176 (1983).

2. Conditions of employment.

A requirement that employees shall wear uniforms constitutes a condition of employment under subdivision (17) of this section, and is, therefore, a mandatory subject of collective bargaining under section 1725 of this chapter. Burlington Fire Fighters' Association v. City of Burlington, 142 Vt. 434, 457 A.2d 642 (1983).

3. Supervisors.

Definition of "supervisor" is largely fact-based determination, in which Labor Relations Board is afforded large measure of discretion; Board's decision will be overturned only if shown to be clearly erroneous. Harwood Union High School District v. Harwood Education Ass'n, 172 Vt. 167, 773 A.2d 277 (2000).

Applying definition of "supervisor" to particular facts requires considerable discretion, and Labor Relations Board's decision will not be overturned on appeal unless it is shown to be clearly erroneous. In re AFSCME, Local 490, 153 Vt. 318, 571 A.2d 63 (1989).

Effective exercise of any one of the powers enumerated in section 1502(13) of this title confers supervisory status on an employee. In re AFSCME, Local 490, 153 Vt. 318, 571 A.2d 63 (1989).

The existence of actual power, rather than the frequency of its use, determines supervisory status. In re AFSCME, Local 490, 153 Vt. 318, 571 A.2d 63 (1989).

Detailed regulations do not alone determine whether an employee operating under those regulations can exercise independent judgment within the meaning of section 1502(13) of this title. In re AFSCME, Local 490, 153 Vt. 318, 571 A.2d 63 (1989).

In determining that police department sergeants should not be excluded from bargaining unit as supervisory employees, Labor Relations Board did not err by giving great weight to finding that sergeants performed the same duties as patrol officers a significant portion of the time. In re AFSCME, Local 490, 153 Vt. 318, 571 A.2d 63 (1989).

4. Municipal employers.

Vermont Department of State's Attorneys and Sheriffs was not an employer of the employees within the State's Attorney's Offices, including deputy state's attorneys, victim advocates, and secretaries, in conjunction with the individual state's attorneys; on the other hand, the individual state's attorneys, who were statutorily authorized county officers, were municipal employers under the Vermont Municipal Employee Relations Act (MERA) to the extent that they employed five or more employees as defined in MERA. The fact that the State's Attorneys might be unable to bargain over the full scope of employment issues with respect to the petitioned-for employees in their offices did not mean that they were not municipal employers under MERA. In re Election Petitions, 201 Vt. 123, 136 A.3d 213 (2016).

5. Municipal employees.

Secretaries with the State's Attorney's Offices are to be considered State employees paid by the state, and shall receive those benefits available to other classified State employees who are similarly situated, but the same statutory subsection provides that the secretaries are not subject to the rules regarding classification of State employees and that they shall be hired by and shall serve at the pleasure of the State's Attorney. In short, although the provision requires that the secretaries be paid as State employees, it also recognizes that they will be hired by and work for a county employer, which makes them municipal employees under the Vermont Municipal Employee Relations Act. In re Election Petitions, 201 Vt. 123, 136 A.3d 213 (2016).

Cited. Firefighters of Brattleboro v. Brattleboro Fire Department, 138 Vt. 347, 415 A.2d 243 (1980); Dube v. Chauffeurs, Teamsters & Warehousemen, Local No. 597, 139 Vt. 394, 430 A.2d 440 (1981); International Association of Firefighters v. Town of Hartford, 146 Vt. 371, 503 A.2d 1143 (1985); Ploof v. Village of Enosburg Falls, 147 Vt. 196, 514 A.2d 1039 (1986); Weissenstein v. Burlington Board of School Commissioners, 149 Vt. 288, 543 A.2d 691 (1988); Milton Educ. & Support Ass'n v. Milton Bd. of Sch. Trs., 175 Vt. 531, 824 A.2d 605 (mem.) (2003).

§ 1723. Determination of the bargaining unit.

Nothing in this chapter shall prevent a municipal employer from voluntarily recognizing an employee organization as the exclusive bargaining agent. Voluntary recognition may be granted at the request of an employee organization if:

  1. The employee organization demonstrates the support of a majority of the employees and the bargaining unit it seeks to represent; and
  2. No rival employee organization seeks to represent the same individual employee or the same jobs or positions for which recognition is being sought; and
  3. The bargaining unit is appropriate under the standards set forth in subsection 1724(c) of this title.  This section shall not require voluntary recognition of an employee organization by a municipal employer.

    Added 1973, No. 111 , § 1.

§ 1724. Certification procedure.

    1. A petition may be filed with the Board, in accordance with rules adopted by the Board: (a) (1)  A petition may be filed with the Board, in accordance with rules adopted by the Board:
      1. By an employee or group of employees, or any individual or employee organization purporting to act on their behalf, alleging that not less than 30 percent of the employees wish to form a bargaining unit and be represented for collective bargaining, or assert that the individual or employee organization currently certified as bargaining agent is no longer supported by at least 51 percent of the employees in the bargaining unit, or that not less than 51 percent of the employees now included in an approved bargaining unit wish to form a separate bargaining unit under Board criteria for purposes of collective bargaining. The employee, group of employees, individual, or employee organization that files the petition shall, at the same time that the petition is filed with the Board, provide a copy of the petition to the employer and, if appropriate, the current bargaining agent.
      2. By the employer alleging that the presently certified bargaining unit is no longer appropriate under Board criteria. The employer shall provide a copy of the petition to the current bargaining agent at the same time that the petition is filed with the Board.
        1. An employer shall, not more than seven business days after receiving a copy of the petition, file any objections to the appropriateness of the proposed bargaining unit and raise any other unit determination issues with the Board and provide a copy of the filing to the employee, group of employees, individual, or employee organization that filed the petition.
        2. A hearing shall be held before the Board pursuant to subdivision (d)(1)(B) of this section in the event the employer challenges the appropriateness of the proposed bargaining unit, provided that a hearing shall not be held if the parties stipulate to the composition of the appropriate bargaining unit and resolve any other unit determination issues before the hearing.
        3. The Board may endeavor to informally mediate any dispute regarding the appropriateness of the proposed bargaining unit prior to the hearing.
        1. Within five business days after receiving a copy of the petition, the employer shall file with the Board and the employee or group of employees, or the individual or employee organization purporting to act on their behalf, a list of the names and job titles of the employees in the proposed bargaining unit. To the extent possible, the list of employees shall be in alphabetical order by last name and provided in electronic format. (B) (i) Within five business days after receiving a copy of the petition, the employer shall file with the Board and the employee or group of employees, or the individual or employee organization purporting to act on their behalf, a list of the names and job titles of the employees in the proposed bargaining unit. To the extent possible, the list of employees shall be in alphabetical order by last name and provided in electronic format.
        2. An employee or group of employees, or any person purporting to act on their behalf, that is seeking to demonstrate that the current bargaining agent is no longer supported by at least 51 percent of the employees in the bargaining unit shall not be entitled to obtain a list of the employees in the bargaining unit from the employer pursuant to this subdivision (a)(2)(B), but may obtain a list pursuant to subdivision (e)(3) of this section after the Board has investigated its petition and determined that a secret ballot election shall be conducted.
        3. The list shall be kept confidential and shall be exempt from copying and inspection under the Public Records Act.
  1. The Board, a Board member, or a person or persons designated by the Board shall investigate the petition and do one of the following:
    1. Determine that the petition has made a sufficient showing of interest pursuant to subdivision (a)(1)(A) of this section.
      1. If it finds reasonable cause to believe that a question of unit determination or representation exists, the Board shall schedule a hearing to be held before the Board not more than ten business days after the petition was filed with the Board. (2) (A) If it finds reasonable cause to believe that a question of unit determination or representation exists, the Board shall schedule a hearing to be held before the Board not more than ten business days after the petition was filed with the Board.
      2. Once scheduled, the date of the hearing shall not be subject to change except as provided pursuant to subdivision (e)(4) of this section.
      3. Hearing procedure and notification of the results of the hearing shall be in accordance with rules adopted by the Board, except that the parties shall only be permitted to submit posthearing briefs within not more than five business days after the hearing if the parties mutually agree to do so or if the Board requests that the parties submit posthearing briefs.
      4. The Board shall issue its decision as soon as practicable and, in any event, not more than five business days after the hearing or the submission of any posthearing briefs.
    2. If the Board finds an absence of substantive evidence, it shall dismiss the petition.
  2. In determining whether a question of representation exists, the Board shall take into consideration the following criteria:
    1. The similarity or divergence of the interests, needs, and general conditions of employment of all employees within the proposed bargaining unit.  The Board may, in its discretion, require that a separate vote be taken among any particular class or type of employee within a proposed unit to determine specifically if the class or type wishes to be included.  No bargaining unit shall include both professional employees and other municipal employees unless a majority of such professional employees vote for inclusion in such unit.
    2. Whether overfragmentation of units will result from certification to a degree that is likely to produce an adverse effect on the effective representation of other employees of the municipal employer or upon the effective operation of the municipal employer.
    3. In determining whether a unit is appropriate the extent to which the employees have organized is not controlling.
  3. Nothing in this chapter prohibits the waiving of hearings by stipulation for a consent election in conformity with regulations and rules of decision of the Board.
    1. In determining the representation of municipal employees in a collective bargaining unit, the Board shall conduct an election by secret ballot of the employees and certify the results to the interested parties and to the employer. The election shall be held not more than 23 business days after the petition is filed with the Board except as otherwise provided pursuant to subdivision (4) of this subsection. (e) (1)  In determining the representation of municipal employees in a collective bargaining unit, the Board shall conduct an election by secret ballot of the employees and certify the results to the interested parties and to the employer. The election shall be held not more than 23 business days after the petition is filed with the Board except as otherwise provided pursuant to subdivision (4) of this subsection.
    2. The original ballot shall permit a vote against representation by anyone named on the ballot. No representative will be certified with less than a 51 percent affirmative vote of all votes cast. If it is asserted that the certified bargaining agent is no longer supported by at least 51 percent of the employees in the bargaining unit and there is no attempt to seek the election of another employee organization or individual as bargaining representative, there shall be at least 51 percent negative vote of all votes cast to decertify the existing bargaining agent.
      1. The employer shall file with the Board and the other parties a list of the employees in the bargaining unit within two business days after the Board determines that a secret ballot election shall be conducted. (3) (A) The employer shall file with the Board and the other parties a list of the employees in the bargaining unit within two business days after the Board determines that a secret ballot election shall be conducted.
      2. The list shall include, as appropriate, each employee's name, work location, shift, job classification, and contact information. As used in this subdivision (3), "contact information" includes an employee's home address, personal e-mail address, and home and personal cellular telephone numbers to the extent that the employer is in possession of such information.
      3. To the extent possible, the list of employees shall be in alphabetical order by last name and provided in electronic format.
      4. The list shall be:
        1. kept confidential by the Board and all of the parties; and
        2. shall be exempt from copying and inspection under the Public Records Act.
      5. Failure to file the list within the time required pursuant to subdivision (A) of this subdivision (3) may be grounds for the Board to set aside the results of the election if an objection is filed within the time required pursuant to the Board's rules.
    3. The Board may, upon the request of any party or on its own motion, extend any time period set forth in this subsection or in subsections (a) and (b) of this section for good cause, provided that the election shall be conducted, or, in the event of a mail ballot election, that ballots are mailed to the employees, within not more than 60 calendar days after the date the petition is filed pursuant to subsection (a) of this section. The Board may further extend the date to conduct the election by not more than 30 additional calendar days upon the mutual agreement of the parties or if it determines that extraordinary circumstances have made such an extension necessary.
  4. If in such election none of the choices receive at least a 51 percent affirmative vote of all votes cast, a runoff election shall be conducted, the ballot providing for a selection between the two choices receiving the largest and second largest number of valid votes cast in the original election.
  5. The Board's certification of the results of any election shall be conclusive as to findings unless reviewed under proceedings instituted for the prevention of unfair labor practices.
  6. No election may be conducted under this section in a bargaining unit or a subdivision within which in the preceding 12 months a valid election has been held.

    Added 1973, No. 111 , § 1; amended 1989, No. 135 (Adj. Sess.); 2019, No. 180 (Adj. Sess.), § 3, eff. Jan. 1, 2021.

History

2020. In subdiv. (b)(2)(D), inserted the word "of" after "submission" to correct a grammatical error.

In subdiv. (e)(4), substituted "subsection (a)" for "subsection (c)" to correct the cross-reference.

Amendments--2019 (Adj. Sess.). Subsecs. (a), (b), (e): Amended generally.

Amendments--1989 (Adj. Sess.). Subdiv (a)(2): Deleted "one or more individuals or employee organizations have presented to him a claim to be recognized as representative for purposes of collective bargaining, or that the presently certified bargaining agent is no longer supported by 51 percent of the employees of the bargaining unit, or that" following "alleging that".

Subsec. (e): Added the fourth sentence.

ANNOTATIONS

Analysis

1. Construction.

Subdivision (c)(3) of this section does not say that the extent to which employees have organized may not be considered as a factor in determining whether a unit is appropriate, it merely provides that it shall not be considered the controlling factor. Local Union No. 300, IBEW v. Burlington Electric Light Department, 133 Vt. 258, 336 A.2d 178 (1975).

2. Criteria for representation determinations.

City's conclusion that a single bargaining unit for police and firemen would be preferable as a matter of time and expediency was insufficient to overturn, on grounds of adverse effect upon the operation of the city, Labor Relations Board's certification of an organization for the police and a different organization for the firemen. International Association of Firefighters Local #2287 v. City of Montpelier, 133 Vt. 175, 332 A.2d 795 (1975).

3. Burden of proof.

Designation of statutory criteria to be met in determining whether a question of representation of municipal employees by a bargaining unit exists does not, without more, result in the assignment of a burden of proof to any party involved in a representation dispute. International Association of Firefighters Local #2287 v. City of Montpelier, 133 Vt. 175, 332 A.2d 795 (1975).

§ 1725. Collective bargaining procedure.

    1. For the purpose of collective bargaining, the representatives of the municipal employer and the bargaining unit shall meet at any reasonable time and shall bargain in good faith with respect to wages, hours, and conditions of employment and shall execute a written contract incorporating any agreement reached; provided, however, that neither party shall be compelled to agree to a proposal nor to make a concession, nor to bargain over any issue of managerial prerogative. (a) (1)  For the purpose of collective bargaining, the representatives of the municipal employer and the bargaining unit shall meet at any reasonable time and shall bargain in good faith with respect to wages, hours, and conditions of employment and shall execute a written contract incorporating any agreement reached; provided, however, that neither party shall be compelled to agree to a proposal nor to make a concession, nor to bargain over any issue of managerial prerogative.
      1. For the purpose of collective bargaining related to municipal school employees, "wages, hours, and conditions of employment" shall not include health care benefits or coverage other than stand-alone vision and dental benefits. Health care benefits and coverage, excluding stand-alone vision and dental benefits but including health reimbursement arrangements and health savings accounts, shall not be subject to collective bargaining by municipal school employees pursuant to this chapter, but shall be determined pursuant to 16 V.S.A. chapter 61. (2) (A) For the purpose of collective bargaining related to municipal school employees, "wages, hours, and conditions of employment" shall not include health care benefits or coverage other than stand-alone vision and dental benefits. Health care benefits and coverage, excluding stand-alone vision and dental benefits but including health reimbursement arrangements and health savings accounts, shall not be subject to collective bargaining by municipal school employees pursuant to this chapter, but shall be determined pursuant to 16 V.S.A. chapter 61.
      2. All written contracts executed in relation to municipal school employees shall incorporate by reference the terms of the agreement entered into pursuant to 16 V.S.A. chapter 61.
  1. The municipal employer shall be represented in the bargaining by its legislative body or its designated representative or representatives. If the municipal employer is a supervisory district or supervisory union, it shall be represented by the school board negotiations council, and the bargaining unit shall be represented by the school employees' negotiations council.
  2. In the event that any part or provision of a collective bargaining agreement is in conflict with any State law, charter, or special act, such law shall prevail so long as the conflict remains except as provided to the contrary in subsection 1734(b) of this title.  In the event any part or provision of a collective bargaining agreement is in conflict with any ordinance, bylaw, rule, or regulation adopted by the municipal employer or its agents, the lawful vote of the legislative body approving the written agreement shall validate the collective bargaining agreement and shall supersede such ordinance, bylaw, rule, or regulation.

    Added 1973, No. 111 , § 1; amended 2007, No. 82 , § 40; 2018, No. 11 (Sp. Sess.), § H.22, eff. Jan. 1, 2020.

History

Amendments--2018 (Sp. Sess.). Subsec. (a): Added the subdiv. (1) designation and inserted "that" preceding "neither".

Subdiv. (a)(2): Added.

Amendments--2007. Subsec. (b): Added the second sentence.

Effective date and applicability of 2018 (Sp. Sess.) amendment. 2018, No. 11 (Sp. Sess.), § H.31(a)(6) provides: "Secs. H.19-H.22 (subjects for collective bargaining) [which amended this section and 16 V.S.A. §§ 2004 and 2005 and 21 V.S.A. § 1722] shall take effect on January 1, 2020 and shall apply to all collective bargaining agreements between a supervisory union or school district and school employees that take effect on or after that date."

ANNOTATIONS

Analysis

1. Conditions of employment.

A requirement that employees shall wear uniforms constitutes a condition of employment, and is, therefore, a mandatory subject of collective bargaining. Burlington Fire Fighters' Association v. City of Burlington, 142 Vt. 434, 457 A.2d 642 (1983).

2. Arbitration.

The Labor Relations Board does not have to defer to an arbitrator's decision unless it is grounded somehow in the contract language or in established past practices; thus, it could rule that the school board had to bargain with the association representing employees before contracting out the maintenance work. Milton Educ. & Support Ass'n v. Milton Bd. of Sch. Trs., 175 Vt. 531, 824 A.2d 605 (mem.) (2003).

Cited. Vermont State Colleges Faculty Federation v. Vermont State Colleges, 138 Vt. 451, 418 A.2d 34 (1980); International Brotherhood of Electrical Workers, Local 300 v. Enosburg Falls Water & Light Department, 148 Vt. 26, 527 A.2d 1150 (1987).

§ 1726. Unfair labor practices.

  1. It shall be an unfair labor practice for an employer:
    1. To interfere with, restrain or coerce employees in the exercise of their rights guaranteed by this chapter or by any other law, rule, or regulation.
    2. To dominate or interfere with the formation or administration of any employee organization or contribute financial or other support to it; provided that an employer shall not be prohibited from permitting employees to confer with the employer during working hours without loss of time or pay.
    3. By discrimination in regard to hiring or tenure of employment or by any term or condition of employment to encourage or discourage membership in any employee organization.
    4. To discharge or otherwise discriminate against an employee because the employee has filed charges or complaints or given testimony under this chapter.
    5. To refuse to bargain collectively in good faith with the exclusive bargaining agent.
    6. To refuse to appropriate sufficient funds to implement a written collective bargaining agreement.
    7. To discriminate against an employee on account of race, color, religion, creed, sex, sexual orientation, gender identity, national origin, disability, age, or political affiliation.
    8. A municipal employer and the exclusive bargaining agent may agree to require the agency service fee to be paid as a condition of employment, or require as a condition of employment membership in such employee organization on or after the 30th day following the beginning of such employment or the effective date of such agreement, whichever is the later. Nothing in this section shall require an employer to discharge an employee in the absence of such an agreement. A municipal employer shall not discharge or discriminate against any employee for nonpayment of the agency service fee or for nonmembership in an employee organization:
      1. if the employer has reasonable grounds for believing that membership was not available to the employee on the same terms and conditions generally applicable to other members; or
      2. if the employer has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.
  2. It shall be an unfair labor practice for an employee organization or its agents:
    1. To restrain or coerce employees in the exercise of the right guaranteed to them by law, rule, or regulation.  However, this subdivision shall not impair the right of an employee organization to prescribe its own rules with respect to the acquisition or retention of membership therein, provided such rules are not discriminatory.
    2. To restrain or coerce an employer in the selection of representatives for the purposes of collective bargaining or adjustments of grievances.
    3. To cause or attempt to cause an employer to discriminate against an employee in violation of this title or to fail or refuse to represent all employees in the bargaining unit without regard to membership in such organization.
    4. To refuse to bargain collectively in good faith with a municipal employer.
    5. To engage in, or to induce or encourage any person to engage in a strike or a refusal in the course of employment to use, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or to threaten, coerce, or restrain any person with the aim of forcing or requiring any employee to join any employee organization or forcing or requiring any person to cease doing business with any other person, in the course of regular municipal business.
    6. To require employees covered by the agency service fee requirement or other union security agreement authorized under subsection (a) of this section to pay an initiation fee which the Board finds excessive or discriminatory under all the circumstances, including the practices and customs of employee organizations representing municipal employees and the wages paid to the employees affected.
    7. To cause or attempt to cause a municipal employer to pay or deliver or agree to pay or deliver any money or other thing of value in the nature of an exaction, for services which are not performed or not to be performed or which are not needed or required by the municipal employer.
    8. To picket or cause to be picketed, or threaten to picket or cause to be picketed, the municipal employer where an object thereof is forcing or requiring the municipal employer to recognize or bargain with an employee organization as the employees' representative, or forcing or requiring the employees of an employer to accept or select the employee organization as their collective bargaining representative.
    9. To discriminate against a person seeking or holding membership therein on account of race, color, religion, creed, sex, sexual orientation, national origin, disability, age, or political affiliation.
    10. To penalize a person for exercising a right guaranteed by the constitution or laws of the United States or the State of Vermont.
    11. To cause or attempt to cause the discharge from employment of employees who, because of religious beliefs, refuse membership therein.
    12. To charge the agency service fee unless the employee organization has established and maintained a procedure to provide nonmembers with all the following:
      1. An audited financial statement that identifies the major categories of expenses and divides them into chargeable and nonchargeable expenses.
      2. An opportunity to object to the amount of the fee requested and to place in escrow any amount reasonably in dispute.
      3. Prompt arbitration by an arbitrator selected jointly by the objecting fee payer and the employee organization or pursuant to the rules of the American Arbitration Association to resolve any objection over the amount of the agency service fee. The costs of arbitration shall be paid by the employee organization.

        Added 1973, No. 111 , § 1; amended 1991, No. 135 (Adj. Sess.), §§ 16, 17; 1999, No. 19 , § 7; 2007, No. 41 , § 20; 2013, No. 37 , § 17, eff. June 30, 2013.

History

Amendments--2013. Subdiv. (a)(8): Amended generally.

Subdiv. (b)(6): Substituted "the agency service fee requirement" for "an agency service fee agreement".

Subdiv. (b)(12): Added.

Amendments--2007. Subdiv. (a)(7): Inserted "gender identity," following "sexual orientation".

Amendments--1999. Subsec. (a): Substituted "the employer" for "him" in subdiv. (2) and "the employee" for "he" in subdiv. (4); inserted "disability" following "national origin" in subdiv. (7); and substituted "the employer" for "he" in subdivs. (8)(A) and (8)(B).

Subsec. (b): Deleted "his" following "selection of" in subdiv. (2) and following "the course of" in subdiv. (5); inserted "employees'" preceding "representative" and deleted "of his employees" thereafter in subdiv. (8); and inserted "disability" following "national origin" in subdiv. (9).

Amendments--1991 (Adj. Sess.). Inserted "sexual orientation" following "sex" in subdivs. (a)(7) and (b)(9).

ANNOTATIONS

Analysis

1. Construction with other laws.

The provisions of subdivision (a)(8) of this section permitting agency service fee agreements for municipal employees were not extended to teachers by virtue of the enactment of section 1735 of this title, which provides that teachers shall be considered municipal employees for purposes of representation in, and prevention of, unfair labor practices under sections 1726-1729 of this title, since section 1735 also provides that it does not alter or repeal the provisions of the Labor Relations for Teachers Act (16 V.S.A. chapter 57), and agency fee agreements are prohibited by section 1982(a) of that Act. Weissenstein v. Burlington Board of School Commissioners, 149 Vt. 288, 543 A.2d 691 (1988).

2. Discharges.

Discharging employees for engaging in a lawful strike is an unfair labor practice. International Brotherhood of Electrical Workers, Local 300 v. Enosburg Falls Water & Light Department, 148 Vt. 26, 527 A.2d 1150 (1987).

At the heart of any employment discharge allegedly linked to anti-union discrimination is the question of the employer's motivation, and guidelines in examining question whether a discharge was for cause or because of union activity are whether employer knew of the activity, whether there was a climate of coercion and whether the timing of the discharge is suspect. Ohland v. Dubay, 133 Vt. 300, 336 A.2d 203 (1975).

3. Collective bargaining.

Although union contended that because both 21 V.S.A. § 1726(a)(5) and collective bargaining agreement used concept of good faith, all other common law principles in case law and statute were incorporated by reference, neither text of agreement nor history of negotiations leading up to execution of agreement supported rationale. Milton Board of School Directors v. Milton Staff Association, 163 Vt. 240, 656 A.2d 993 (1995).

Section 1726(a)(5) does not impose on contracting parties who include an arbitration clause in their agreement a requirement that they submit post-agreement disputes to arbitration. Milton Board of School Directors v. Milton Staff Association, 163 Vt. 240, 656 A.2d 993 (1995).

Parties to collective bargaining agreement may not expand an arbitrator's authority to resolve disputes beyond the terms of the agreement simply because employees union and public employer bargain every contract under the umbrella of the bargaining law and all its interpretations. Milton Board of School Directors v. Milton Staff Association, 163 Vt. 240, 656 A.2d 993 (1995).

Arbitrator's theory of contractualization of § 1726(a)(5) was misplaced, and the oblique references to the Vermont Municipal Labor Relations Act in collective bargaining agreement did not imply a mutual agreement to extend any provision of the collective bargaining agreement beyond its expiration date, including an implied agreement to arbitrate disputes arising after that date; therefore, arbitrator lacked authority to hear question of post-expiration compensation and award had to be vacated. Milton Board of School Directors v. Milton Staff Association, 163 Vt. 240, 656 A.2d 993 (1995).

The duty to bargain in good faith is an obligation to participate actively in the deliberations, so as to indicate a present intention to find a basis for agreement. International Brotherhood of Electrical Workers, Local 300 v. Enosburg Falls Water & Light Department, 148 Vt. 26, 527 A.2d 1150 (1987).

Employer bad faith bargaining may be manifested in many ways, requiring an analysis of the totality of the employer's conduct within the context in which the bargaining took place in order to determine whether there has been a failure to bargain in good faith. International Brotherhood of Electrical Workers, Local 300 v. Enosburg Falls Water & Light Department, 148 Vt. 26, 527 A.2d 1150 (1987).

Fact that employer's representative at mediation session lacked authority to enter into a binding agreement did not, in and of itself, constitute an unfair labor practice, but was merely some evidence, to be considered in conjunction with other conduct, of employer bad faith bargaining. International Brotherhood of Electrical Workers, Local 300 v. Enosburg Falls Water & Light Department, 148 Vt. 26, 527 A.2d 1150 (1987).

It is a violation of this section for an employer to refuse to bargain in good faith. Burlington Fire Fighters' Association v. City of Burlington, 142 Vt. 434, 457 A.2d 642 (1983).

When an employer, without first consulting a union with which it is carrying on bona fide contract negotiations, institutes a unilateral change in conditions of employment, it per se violates its duty under subdivision (a)(5) of this section to bargain in good faith. Burlington Fire Fighters' Association v. City of Burlington, 142 Vt. 434, 457 A.2d 642 (1983).

Where a regulation adopted by the City of Burlington in 1974 required fire fighters to be in uniform at all times in the station, a 1980 regulation which allowed the fire fighters to wear casual apparel prior to roll call and after completing their tour of duty constituted a change in a condition of employment as defined by section 1722 of this title, and since the new regulation was unilaterally imposed by the City during a period when it was engaged in contract negotiations with the Fire Fighters Association, the City committed an unfair labor practice. Burlington Fire Fighters' Association v. City of Burlington, 142 Vt. 434, 457 A.2d 642 (1983).

4. Work assignment.

Where bus company employee working at terminal on "terminal duty" was involved in incident relating to a missing fare box, was fired, asked to be allowed to resign instead, company manager verbally consented, employee's letter of resignation was never accepted, two weeks later he asked for and received reinstatement with no loss of seniority, a couple months later terminal duty came up for bidding and employee, who had the most longevity and thus seniority, was refused the job, partly on ground that union contract gave the shop steward, granted the job, seniority over everyone, it was an unfair labor practice on the part of the union and the company to give the steward such seniority; but because of the fare box incident, company had a legitimate business purpose in not giving employee the terminal duty and employee had no right to recovery. Dube v. Chauffeurs, Teamsters & Warehousemen, Local No. 597, 139 Vt. 394, 430 A.2d 440 (1981).

5. Bar to claim or consideration of issue.

Parties to a collective-bargaining agreement are required to exhaust contractual remedies before bringing a statutory unfair-labor-practice charge. Milton Education & Support Ass'n v. Milton Board of School Trustees, 171 Vt. 64, 759 A.2d 479 (2000).

Whether collective-bargaining agreement authorized school board to subcontract maintenance work was a question of contract interpretation, and therefore Labor Board erred by refusing to defer to arbitration process provided for in agreement. Milton Education & Support Ass'n v. Milton Board of School Trustees, 171 Vt. 64, 759 A.2d 479 (2000).

Parties to a collective bargaining agreement are required to exhaust available contractual remedies before a statutory unfair labor practice charge will lie under this section. Burlington Area Public Employees Union v. Champlain Water District, 156 Vt. 516, 594 A.2d 421 (1991).

In considering unfair labor practice charge, Labor Relations Board erred in concluding that because a violation of this chapter could be made out, the Board should not defer to the grievance process provided in the parties' collective bargaining agreement. Burlington Area Public Employees Union v. Champlain Water District, 156 Vt. 516, 594 A.2d 421 (1991).

Litigation before State Labor Relations Board and State Supreme Court, focusing on issue whether discharge of city employee constituted an unfair labor practice under this section, and not covering constitutional issues regarding the discharge, did not, by means of res judicata, bar federal district court from considering claims of employee that discharge violated constitutional rights. Ohland v. City of Montpelier, 467 F. Supp. 324 (D. Vt. 1979).

In deciding whether constitutional rights were violated by city's discharge of policeman, federal district court was not estopped from making an independent review of any issue decided by the State Labor Relations Board in unfair labor practice proceeding before it, such as whether policeman was a probationary employee and whether he was discharged for cause or for union involvement, but district court was precluded from examining issues fully and fairly litigated in state Supreme Court and concluded by a final judgment, the determination of which was necessary to the judgment rendered. Ohland v. City of Montpelier, 467 F. Supp. 324 (D. Vt. 1979).

Cited. Chittenden South Education Association, Hinesburg Unit v. Hinesburg School District, 147 Vt. 286, 514 A.2d 1065 (1986); Hinesburg School District v. Vermont NEA, 147 Vt. 558, 522 A.2d 222 (1986).

§ 1727. Prevention of unfair labor practices.

  1. The Board may prevent any person from engaging in any unfair labor practice.  Whenever a charge is made that any person has engaged in or is engaging in any unfair labor practice, the Board may issue and cause to be served upon that person a complaint stating the charges and containing a notice of hearing before the Board at a place and time noted therein which shall be at least 14 days after the complaint is served.  The Board may amend the complaint at any time before it issues an order based thereon.  No complaint shall issue based on any unfair labor practice occurring more than six months prior to the filing of the charge with the Board unless the person aggrieved thereby was prevented from filing the charge by reason of service in the U.S. Armed Forces, in which event the six-month period shall be computed from the day of his or her discharge.  The Board may waive the six-month period if it finds that:
    1. the aggrieved person did not understand that an unfair labor practice had been perpetrated against him or her; or
    2. the offending person had actively concealed his, her, or its perpetration of that unfair labor practice.
  2. The person complained of shall have the right to file an answer to the original or amended complaint and appear in person or through his or her representative and present evidence in connection therewith at the time and place fixed in the complaint.  In the discretion of the Board, any other person may be permitted to intervene and present evidence in the matter.  Any proceeding under this section shall so far as practicable, be conducted in accordance with rules of evidence used in the courts of law or equity.  The Board shall provide for the making of a transcript of the testimony presented at the hearing.
  3. The Board shall have power to administer oaths and take testimony under oath relative to the matter of inquiry.  At any hearing ordered by the Board, the Board shall have the power to subpoena witnesses and to demand the production of books, papers, records, and documents for its examination. Officers who serve subpoenas issued by the Board and witnesses attending hearings conducted by the Board shall receive fees and compensation at the same rates as officers and witnesses in cases before the Criminal Division of the Superior Court, to be paid on vouchers of the Board.
  4. If upon the preponderance of the evidence, the Board finds that any person named in the complaint has engaged in or is engaging in any unfair labor practice, it shall state its finding of fact in writing and shall issue and cause to be served on that person an order requiring him or her to cease and desist from the unfair labor practice, and to take such affirmative action as the Board shall order.  If upon the preponderance of the evidence the Board does not find that the person named in the complaint has engaged in or is engaging in any unfair labor practice, it shall state its findings of fact in writing and dismiss the complaint.
  5. In determining whether a complaint shall issue alleging that an unfair labor practice has been committed, and in deciding those cases, the same regulations and rules of decision shall apply irrespective of whether the employee organization affected is affiliated with an employee organization national or international in scope.
  6. No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged or the payment to him or her of any back pay, if such individual has recourse to binding arbitration under a labor contract grievance procedure for such suspension or discharge.

    Added 1973, No. 111 , § 1; amended 2009, No. 154 (Adj. Sess.), § 238.

History

Amendments--2009 (Adj. Sess.). Subsec. (c): Substituted "Criminal Division of the Superior Court" for "district court".

ANNOTATIONS

Analysis

1. Discretion of Board.

Where Labor Relations Board concluded that school board converted a walkout into an unfair labor practice by unilaterally deleting provisions from its teacher employment policy, its order requiring the school board to add those provisions to its contract offer and reinstate striking teachers who offered to return to work unconditionally under the amended contract was well within the Board's discretion under subsection (d) of this section. Chittenden South Education Association, Hinesburg Unit v. Hinesburg School District, 147 Vt. 286, 514 A.2d 1065 (1986).

The Labor Relations Board has discretionary authority to issue or to decline to issue an unfair labor practice complaint. Hinesburg School District v. Vermont NEA, 147 Vt. 558, 522 A.2d 222 (1986).

2. Review.

A decision by the Labor Relations Board not to issue an unfair labor practice complaint will be reversed on appeal only if the board abused its discretion. Hinesburg School District v. Vermont NEA, 147 Vt. 558, 522 A.2d 222 (1986).

Cited. Ohland v. Dubay, 133 Vt. 300, 336 A.2d 203 (1975); In re Southwestern Vermont Education Association, 136 Vt. 490, 396 A.2d 123 (1978); Dube v. Chauffeurs, Teamsters & Warehousemen, Local No. 597, 139 Vt. 394, 430 A.2d 440 (1981); International Brotherhood of Electrical Workers, Local 300 v. Enosburg Falls Water & Light Department, 148 Vt. 26, 527 A.2d 1150 (1987).

§ 1728. Freedom of expression.

The expression of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, oral, or visual form, shall not constitute or be evidence of an unfair labor practice under this chapter, if such expression contains no threat of reprisal or promise of benefit.

Added 1973, No. 111 , § 1.

§ 1729. Enforcement and review.

  1. Orders of the Board issued under this chapter may be enforced by any party or by the Board by filing a petition with the Washington Superior Court or the Superior Court in the county in which the action before the Board originated.  The petition shall be served on the adverse party as provided for service of process under the Vermont Rules of Civil Procedure.  If, after hearing, the court determines that the Board had jurisdiction over the matter and that a timely appeal was not filed, or that an appeal was timely filed and a stay of the Board order or any part of it was not granted, or that a Board order was affirmed on appeal in pertinent part by the Supreme Court, the court shall incorporate the order of the Board as a judgment of the court.  There is no appeal from that judgment except that a judgment reversing a Board decision on jurisdiction may be appealed to the Supreme Court.
  2. Upon filing of a petition by a party or the Board, the court may grant such temporary relief, including a restraining order, as it deems proper pending formal hearing.
  3. Any person aggrieved by an order or decision of the Labor Relations Board issued under the authority of this chapter may appeal on questions of law to the Supreme Court under 12 V.S.A. chapter 102 and the Vermont Rules of Appellate Procedure.
  4. An order of the Board shall not automatically be stayed pending appeal.  A stay must first be requested from the Board.  The Board may stay the order or any part of it.  If the Board denies a stay, then a stay may be requested from the Supreme Court.  The Supreme Court or a single justice may stay the order or any part of it and may order additional interim relief.

    Added 1973, No. 111 , § 1; amended 1987, No. 196 (Adj. Sess.), § 3, eff. May 13, 1988; 1989, No. 25 , § 2; 2017, No. 74 , § 58.

History

Reference in text. Reference to "sections 2382 et seq. of Title 12" at the end of subsec. (c) is obsolete, since most of the sections included in the reference have been repealed. For present provisions governing appeals to the Supreme Court, see Vermont Rules of Appellate Procedure.

2016. In subsec. (c), substituted "12 V.S.A. chapter 102" for "12 V.S.A. § 2382" to reflect repeal of 12 V.S.A. § 2382.

Revision note - At the end of the first sentence of subsec. (a), substituted "Superior Court of Washington county" for "court of Washington county with equity jurisdiction" for purposes of clarity. See 4 V.S.A. § 219.

Amendments--2017. Subsec. (c): Added "and the Vermont Rules of Appellate Procedure" following "chapter 102".

Amendments--1989. Subsec. (a): Inserted "or that an appeal was timely filed and a stay of the board order or any part of it was not granted, or that a board order was affirmed on appeal in pertinent part by the supreme court" preceding "the court shall incorporate" in the third sentence.

Amendments--1987 (Adj. Sess.). Rewrote subsec. (a), inserted "a party or" following "petition by" in subsec. (b), deleted former subsec. (c), redesignated former subsec. (d) as present subsec. (c), and added present subsec. (d).

Cross References

Cross references. Service of process, see V.R.C.P. 4.

ANNOTATIONS

Cited. Board of Trustees of Kellogg-Hubbard Library, Inc. v. Labor Relations Board, 162 Vt. 571, 649 A.2d 784 (1994).

§ 1730. Restrictions on strikes.

  1. A strike shall not be prohibited unless
    1. it occurs sooner than 30 days after the delivery of a factfinder's report to the parties pursuant to subsection 1732(e) of this title;
    2. it occurs after both parties have voluntarily submitted a dispute to final and binding arbitration, or after a decision or award has been issued by the arbitrator; or
    3. it will endanger the health, safety, or welfare of the public. A municipal employer may petition for an injunction or other appropriate relief from the Superior Court within the county wherein such strike in violation of this section is occurring or is about to occur.
  2. A municipality in which a strike is permitted under this section shall not permanently replace employees who participate in a strike.

    Added 1973, No. 111 , § 1; amended 1999, No. 44 , § 1.

History

2009. In the second sentence of subdiv. (3), substituted "superior court" for "court of equity jurisdiction" for purposes of clarity. See 4 V.S.A. § 219.

Amendments--1999. Designated the existing provisions as subsec. (a) and added subsec. (b).

§ 1731. Mediation.

  1. If the parties are at an impasse in negotiations, either party may petition the Commissioner of Labor to appoint a mediator. The Commissioner shall within 30 days serve as a mediator, or shall appoint a mediator, who shall communicate with the employer and the employees or their representatives and endeavor by mediation to obtain an amicable settlement. Any mediator so appointed shall be a person of high standing in no way actively connected with labor or management.
  2. Nothing in this section shall prevent the Commissioner from serving as a mediator or from appointing a mediator in the absence of a petition if the Commissioner determines that an impasse exists and that the public interest so requires.

    Added 1973, No. 111 , § 1; amended 1983, No. 125 (Adj. Sess.), § 1; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Amendments--2005 (Adj. Sess.) Subsec. (a): Substituted "Commissioner of Labor" for "commissioner of labor and industry".

Amendments--1983 (Adj. Sess.). Subsec. (a): Substituted "within 30 days" for "forthwith" following "commissioner shall" in the second sentence.

§ 1732. Fact-finding.

  1. If after a reasonable period of time not less than 15 days after the appointment of a mediator the impasse is not resolved, the mediator shall certify to the Commissioner of Labor that the impasse continues.  The Commissioner shall appoint a qualified fact finder within 30 days of a request by either party.  The Commissioner may maintain a list of qualified fact finders drawn up after consultation with representatives of State and local government, employee organizations, boards of conciliation and arbitration in other New England states, and the American Arbitration Association.
  2. The fact finder shall convene the parties as soon as practicable after his or her appointment, hold informal hearings, and provide adequate opportunity to all parties to testify and present evidence regarding their respective positions.  Upon the request of the fact finder, all parties to the dispute shall furnish him or her with any records, paper, and information in their possession relevant to resolution of the dispute.
  3. Nothing shall prevent a fact finder from attempting to mediate the dispute.  The provisions of 3 V.S.A. § 810 shall not apply to a hearing conducted by a fact finder.  At the request of any party, such hearing shall be opened to the public.
  4. In reaching his or her conclusions and recommendations, the fact finder shall give weight to the following factors:
    1. the lawful authority of the municipal employer;
    2. stipulations of the parties;
    3. the interest and welfare of the public and the financial ability of the municipal employer to pay for increased costs of public services including the cost of labor;
    4. comparisons of the wages, hours, and conditions of employment of the employees involved in the dispute with the wages, hours, and conditions of employment of other employees performing similar services in public employment in comparable communities or in private employment in comparable communities;
    5. the average consumer prices for goods and services commonly known as the cost of living;
    6. the overall compensation presently received by the employees including direct wages, fringe benefits, and continuity conditions and stability of employment, and all other benefits received.
  5. The fact finder shall make a written report with recommendations to both parties within 30 days after the close of hearings.  The report shall be made public by the fact finder if the dispute has not been resolved within 10 days after delivery of the report to the parties.  The report and recommendations of the fact finder shall be advisory only and shall not be binding on either party.
  6. All expenses of mediation and fact-finding shall be shared equally by the parties.

    Added 1973, No. 111 , § 1; amended 1983, No. 125 (Adj. Sess.), § 2; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Amendments--2005 (Adj. Sess.) Subsec. (a): Substituted "Commissioner of Labor" for "commissioner of labor and industry".

Amendments--1983 (Adj. Sess.). Subsec. (a): Substituted "the Commissioner shall" for "upon the request of either party the commissioner will" preceding "appoint a qualified fact finder" and added "within 30 days of a request by either party" thereafter in the second sentence.

§ 1733. Arbitration.

    1. Nothing in this chapter shall prevent the legislative body of a municipal employer and the exclusive bargaining agent from voluntarily submitting a contract impasse to final and binding arbitration or for the municipality by a referendum vote from adopting binding arbitration procedures, in the following form: (a) (1)  Nothing in this chapter shall prevent the legislative body of a municipal employer and the exclusive bargaining agent from voluntarily submitting a contract impasse to final and binding arbitration or for the municipality by a referendum vote from adopting binding arbitration procedures, in the following form:
      1. Notwithstanding any provision of subdivision (1) of this subsection (a), if an impasse continues between the legislative body of a municipal employer and the exclusive bargaining agent for municipal public safety employees for 20 days after a fact finder has made its report public under subsection 1732(e) of this title, the legislative body of the municipal employer and the exclusive bargaining agent for the municipal public safety employees shall submit the contract impasse to final and binding arbitration pursuant to the provisions of this section. (2) (A) Notwithstanding any provision of subdivision (1) of this subsection (a), if an impasse continues between the legislative body of a municipal employer and the exclusive bargaining agent for municipal public safety employees for 20 days after a fact finder has made its report public under subsection 1732(e) of this title, the legislative body of the municipal employer and the exclusive bargaining agent for the municipal public safety employees shall submit the contract impasse to final and binding arbitration pursuant to the provisions of this section.
      2. Notwithstanding any provision of section 1732 of this chapter to the contrary, after the mediator has certified to the Commissioner of Labor that the impasse continues, the legislative body of a municipal employer and the exclusive bargaining agent for municipal public safety employees may agree to proceed directly to final and binding arbitration pursuant to the provisions of this section without first submitting the dispute to fact finding pursuant to section 1732 of this chapter.
      3. The provisions of this subdivision (2) shall not apply to negotiations between the legislative body of a municipal employer and the exclusive bargaining agent for a bargaining unit that includes both municipal public safety employees and other municipal employees.

    The arbitrator shall have the power to determine all issues in dispute involving wages, hours, and conditions of employment as defined by this chapter.

  1. Where an impasse continues for 20 days after a fact finder has made a report public under subsection 1732(e) of this title, a three-member arbitration panel shall be formed as follows:
    1. Each party to the impasse shall select one member of the panel and state its final offer on all disputed issues on the 20th day following publication of the fact finder's report.
    2. The two members so selected shall within five business days select the third member of the panel to serve as Chair. If the two members fail to select a third member of the panel within five business days, the third member shall be appointed by the Superior Court for the county in which the municipality is situated, upon petition of either party, and notice to the other party.
    3. Within 30 days of the appointment of the Chair, the panel shall decide by majority vote all disputed issues involving wages, hours, and conditions of employment as defined by this chapter, and this award shall become an agreement of the parties.
  2. In reaching a decision the arbitrator shall give weight to the factors listed in subsection 1732(d) of this title.
  3. Upon application of a party, a Superior Court shall vacate an award if:
    1. the award was procured by corruption, fraud, or other undue means;
    2. there was evident partiality or prejudicial misconduct by the arbitrator;
    3. the arbitrator exceeded his or her power or rendered an award requiring a person to commit an act or engage in conduct prohibited by law;
    4. the award was made on the basis of subsection (a) of this section, and there was no arbitration agreement; or
    5. there is an absence of substantial evidence on the record as a whole to support the award.
  4. An application under this section shall be made within 30 days after delivery of a copy of the award to the applicant, except that in case of a claim of corruption, fraud, or other undue means, it shall be made within 30 days after such grounds are known or should have been known.
  5. If a municipality has voted to adopt binding arbitration procedures, the legislative body of the municipal employer and the exclusive bargaining agent may agree to proceed directly from mediation to binding arbitration without submitting the dispute to fact-finding.  The decision to proceed directly to binding arbitration may be made at any reasonable time during the mediation process but no less than 30 days after appointment of the mediator under section 1731 of this title. The arbitration panel shall be selected as provided in subsection (b) of this section, with each party to the impasse selecting one member of the panel and stating its final offer on the 20th  day after the agreement to proceed directly to arbitration is reached, and the two members so selected selecting the third member within five days.
  6. Nothing shall prevent a municipal employee from participating in a debate or campaign conducted with regard to a referendum held pursuant to subsection (a) of this section.

    Added 1973, No. 111 , § 1; amended 1977, No. 201 (Adj. Sess.); 1983, No. 126 (Adj. Sess.); 2017, No. 11 , § 52; 2017, No. 74 , § 59; 2017, No. 11 3 (Adj. Sess.), § 150; 2019, No. 61 , § 22; 2019, No. 131 (Adj. Sess.), § 128.

History

2019. In subdiv. (a)(1), substituted "this chapter" for "21 V.S.A. chapter 22" to correct cross-reference.

2016. In the second and fourth sentences of the second paragraph of subsec. (b), substituted "Chair" for "chairman" in accordance with 2013, No. 161 (Adj. Sess.), § 72.

2009. In subsec. (b), substituted "section 1732(e) of this title" for "the previous subsection" to correct an error in the reference.

Revision note - In subsec. (d), substituted "superior court" for "court with equity jurisdiction" for purposes of clarity. See 4 V.S.A. § 219.

Amendments--2019 (Adj. Sess.). Subdiv. (a)(2)(B): Inserted "any provision of".

Amendments--2019. Subsec. (a): Added the (a)(1) designation, substituted "in this chapter" for "herein" following "Nothing", substituted "21 V.S.A. chapter 22" for "this chapter" at the end of the second paragraph, and added subdiv. (a)(2).

Amendments--2017 (Adj. Sess.) Subdiv. (b)(2): Inserted "business" preceding "days" in the first sentence.

Amendments--2017. Act No. 11 inserted "business" following "within five" in the third sentence of the undesignated paragraph following subsec. (b).

Act No. 74 added the subdiv. designations to (b)(1)-(b)(3).

Amendments--1983 (Adj. Sess.). Redesignated former subsec. (f) as subsec. (g) and added a new subsec. (f).

Amendments--1977 (Adj. Sess.). Subsec. (a): Inserted "or for the municipality by a referendum vote from adopting binding arbitration procedures" preceding "in the following" in the first paragraph and "chapter" for "act" at the end of the second paragraph.

Subsec. (b): Redesignated former subsec. (b) as subsec. (c) and added a new subsec. (b).

Subsec. (c): Redesignated former subsec. (b) as subsec. (c) and former subsec. (c) as subsecs. (d) and (e).

Subsec. (d): Redesignated former subsec. (c) as subsec. (d), rewrote subdiv. (4) and redesignated the former second sentence of subdiv. (5) as subsec. (e).

Subsec. (e): Redesignated the former second sentence of subdiv. (c)(5) as subsec. (e).

Subsec. (f): Added.

2019, No. 61 , § 24, provided that the amendment to this section by section 22 of the act shall apply to contract negotiations that begin on or after July 1, 2019.

§ 1734. Miscellaneous.

  1. Municipal employees and exclusive bargaining agents are authorized to negotiate provisions in a collective bargaining agreement calling for:
    1. Payroll deduction of employee organization dues and initiation fees.
    2. Binding arbitration of grievances involving the interpretation or application of a written collective bargaining agreement. The cost of arbitration shall be shared equally by the parties.
  2. In the event of a voluntary submission to binding arbitration by a municipal employer and an employee organization of a grievance or controversy concerning the tenure of employment of any employee, whether or not pursuant to the provisions of a collective bargaining agreement, binding arbitration shall be the exclusive procedure for determining such grievance or controversy, notwithstanding any contrary provision of any general statute, charter, special act, court decision, or ordinance.
  3. Any individual employee or group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the exclusive bargaining agent, as long as the adjustment is not inconsistent with the terms of a collective bargaining agreement and provided that the exclusive bargaining agent has been given an opportunity to be present at such adjustment.
  4. In the absence of an agreement requiring an employee to be a member of the employee organization, an employee choosing not to be a member of the employee organization shall pay the agency service fee in the same manner as employees who choose to join the employee organization pay dues. The employee organization shall indemnify and hold the employer harmless from any and all claims stemming from the implementation or administration of the agency service fee.

    Added 1973, No. 111 , § 1; amended 2013, No. 37 , § 18, eff. June 30, 2013.

History

Revision note. In subdiv. (a)(2), substituted "or" for "on" preceding "application" to correct an apparent typographical error.

Amendments--2013. Subdiv. (a)(1): Deleted "or agency service fee" following "initiation fees".

Subsec. (d): Added.

ANNOTATIONS

1. Rights of employees.

Subsection (c) of this section confers no independent right on an employee to seek arbitration where the collective bargaining agreement provides that the union shall have sole discretion to take this step. Ploof v. Village of Enosburg Falls, 147 Vt. 196, 514 A.2d 1039 (1986).

§ 1735. School districts; certified employees; teachers.

For the purposes of representation in, and prevention of, unfair labor practices under sections 1726-1729 of this title, a teacher who is a certified employee of a school district shall be considered a municipal employee; and any school district, which includes any public school district or any quasi-public or private elementary or secondary school within the State which directly or indirectly receives support from public funds shall be considered a municipal employer. Nothing in this section shall be taken to alter or repeal the provisions of 16 V.S.A. chapter 57, relating to labor relations for teachers, except that enforcement and review under section 1729 of this title shall not be subject to the provisions of 16 V.S.A. § 2010 .

Added 1975, No. 113 , § 2.

ANNOTATIONS

1. Construction with other laws.

The provisions of section 1726(a)(8) of this title permitting agency service fee agreements for municipal employees were not extended to teachers by virtue of the enactment of this section, which provides that teachers shall be considered municipal employees for purposes of representation in, and prevention of, unfair labor practices under sections 1726-1729 of this title, since this section also provides that it does not alter or repeal the provisions of the Labor Relations for Teachers Act (16 V.S.A. chapter 57), and agency fee agreements are prohibited by section 1982(a) of that Act. Weissenstein v. Burlington Board of School Commissioners, 149 Vt. 288, 543 A.2d 691 (1988).

Cited. In re Southwestern Vermont Education Association, 136 Vt. 490, 396 A.2d 123 (1978).

§ 1736. Contract ratification; annual vote.

Annually, the employees of the bargaining unit shall meet and discuss whether employees who have chosen not to join the employee organization shall be allowed to vote on the ratification of any collective bargaining agreement entered into pursuant to this chapter. After discussion, employees that are members of the employee organization shall vote on whether to allow employees who have chosen not to join the employee organization to vote on the ratification of any collective bargaining agreement.

Added 2013, No. 37 , § 18a, eff. June 30, 2013.

§ 1737. Automatic membership dues deduction.

Employees who are members of the employee organization shall have the right to automatic membership dues deductions. Upon receipt of a signed authorization to commence automatic membership dues deductions from an employee, the employer shall, as soon as practicable and in any event, not later than 30 calendar days after receiving the authorization, commence withholding from the employee's wages the amount of membership dues certified by the employee organization. The employer shall transmit the amount withheld to the employee organization on the same day as the employee is paid. Nothing in this section shall be construed to require a member of an employee organization to participate in automatic dues deduction.

Added 2019, No. 180 (Adj. Sess.), § 8, eff. Jan. 1, 2021.

§ 1738. Access to new employees in bargaining unit.

  1. An employer shall provide the employee organization that is the exclusive representative of the employees in a bargaining unit with an opportunity to meet with each newly hired employee in the bargaining unit to present information about the employee organization.
    1. The meeting shall occur during the new employee's orientation or, if the employer does not conduct an orientation for newly hired employees, within 30 calendar days from the date on which the employee was hired. (b) (1)  The meeting shall occur during the new employee's orientation or, if the employer does not conduct an orientation for newly hired employees, within 30 calendar days from the date on which the employee was hired.
    2. If the meeting is not held during the new employee's orientation, it shall be held during the new employee's regular work hours and at his or her regular worksite or a location mutually agreed to by the employer and the employee organization.
    3. The employee organization shall be permitted to meet with the employee for not less than 60 minutes.
    4. The employee shall be paid for attending the meeting at his or her regular rate of pay.
    1. Within 10 calendar days after hiring a new employee in a bargaining unit, the employer shall provide the employee organization with his or her name, job title, worksite location, work telephone number and e-mail address, home address, personal e-mail address, home and personal cellular telephone numbers, and date of hire to the extent that the employer is in possession of such information. (c) (1)  Within 10 calendar days after hiring a new employee in a bargaining unit, the employer shall provide the employee organization with his or her name, job title, worksite location, work telephone number and e-mail address, home address, personal e-mail address, home and personal cellular telephone numbers, and date of hire to the extent that the employer is in possession of such information.
    2. The employee's home address, personal e-mail address, and home and personal cellular telephone numbers shall be kept confidential by the employer and the employee organization and shall be exempt from copying and inspection under the Public Records Act.
  2. The employer shall provide the employee organization with not less than 10 calendar days' notice of an orientation for newly hired employees in a bargaining unit.

    Added 2019, No. 180 (Adj. Sess.), § 13, eff. Jan. 1, 2021.

§ 1739. Annual list of employees in bargaining unit.

  1. Annually, or on a more frequent basis if mutually agreed to by the employer and the employee organization, the employer shall provide the employee organization that is the exclusive representative of a bargaining unit with a list of all employees in that bargaining unit.
  2. The list shall include, as appropriate, each employee's name, work location, job classification, and contact information. As used in this section, "contact information" includes an employee's home address, personal e-mail address, and home and personal cellular telephone numbers to the extent that the employer is in possession of such information.
  3. To the extent possible, the list shall be in alphabetical order by last name and provided in electronic format.
  4. The list shall be kept confidential by the employer and the employee organization and shall be exempt from copying and inspection under the Public Records Act.

    Added 2019, No. 180 (Adj. Sess.), § 17, eff. Jan. 1, 2021.

CHAPTER 24. DEATH BENEFITS

Sec.

§§ 1901, 1902. Repealed. 1977, No. 109, § 33(d), eff. July 3, 1977.

History

Former §§ 1901, 1902. Former § 1901, relating to definitions, was derived from 1973, No. 257 (Adj. Sess.), § 1; and amended by 1975, No. 254 (Adj. Sess.), §§ 146, 147.

Former § 1902, relating to payment of benefits, was derived from 1973, No. 257 (Adj. Sess.), § 1.

CHAPTER 25. EMPLOYERS' HEALTH CARE FUND CONTRIBUTION

Sec.

History

Amendments--2007. 2007, No. 70 , § 27, substituted "Fund" for "Premium" in the chapter heading.

Effective date of chapter. 2005, No. 191 (Adj. Sess.), § 35 provides: "Sec. 34 of this act [which enacted this chapter], establishing an employers' health care premium contribution assessment, shall take effect April 1, 2007, with the first premium assessments due and payable 30 days after the close of that quarter."

2007, No. 70 , § 27a provides: "The provisions of Sec. 27 [which amended this chapter] of this act (employer assessments for Catamount Health) shall apply to employer assessments for reporting periods beginning April 1, 2007, or after."

Effective date and applicability of 2017 amendment. 2017, No. 73 , § 32(7) provides: "Secs. 16 and 17 (transferring employer assessment from the Department of Labor to the Department of Taxes) [which enacted 32 V.S.A. §§ 10501-10505] and Sec. 31(5) (repeal) [which provides for the repeal of 21 V.S.A. §§ 2001-2004] shall take effect on January 1, 2018 with the return of the fourth quarter of 2017 being due on January 25, 2018."

§§ 2001-2004. Repealed. 2017, No. 73, § 31(5), eff. January 1, 2018.

History

Former §§ 2001-2004. Former § 2001, relating to purpose of equitable distributing of costs of health care, was derived from 2005, No. 191 (Adj. Sess.), § 34 and amended by 2007, No. 70 , § 27; and 2013, No. 174 (Adj. Sess.), § 23.

Former § 2002, relating to definitions pertaining to the Employers' Health Care Fund, was derived from 2005, No. 191 (Adj. Sess.), § 34 and amended by 2007, No. 70 , § 27; 2013, No. 54 , § 1; and 2013, No. 174 (Adj. Sess.), § 24.

Former § 2003, relating to the Health Care Fund contribution assessment, was derived from 2005, No. 191 (Adj. Sess.), § 34 and amended by 2007, No. 70 , § 27; 2009, No. 156 (Adj. Sess.), § E.309.6; 2011, No. 75 (Adj. Sess.), § 106; 2013, No. 54 , § 2; and 2013, No. 174 (Adj. Sess.), § 25.

Former § 2004, relating to health benefit costs, was derived from 2011, No. 48 , § 16.

Effective date and applicability of 2017 amendment. 2017, No. 73 , § 32(7) provides: "Secs. 16 and 17 (transferring employer assessment from the Department of Labor to the Department of Taxes) [which enacted 32 V.S.A. §§ 10501-10505] and Sec. 31(5) (repeal) [which provides for the repeal of this section and 21 V.S.A. §§ 2002-2004] shall take effect on January 1, 2018 with the return of the fourth quarter of 2017 being due on January 25, 2018."