The law bans questions about an applicant’s criminal history record on the initial employment application form.
Do I have to hire an applicant with a criminal history record?
No. You are permitted to ask an applicant about a criminal history record during an interview or after the applicant has been found qualified for the job. The law is not designed to force you to hire a person with a criminal record. The law is designed so that promising candidates are not simply screened out in the initial application process. You must follow the procedure.
What happens if a candidate informs us about his or her criminal history record after the initial application process?
He or she must be given a chance to explain the circumstances that resulted in the criminal history record and to describe any post-conviction rehabilitation before you decide whether to make an offer. The exception is if a federal or state law prevents you from hiring the applicant.
Are all employers covered?
There is an exception: If a federal or state law bans hiring persons with a criminal history record for the job, then the question can be asked on the initial application. However, if that federal or state law bans only specific types of criminal offenses, then the application can only ask about those offenses.
What’s the penalty for violating the law?
The law provides for a $100 civil penalty per violation. In addition, the Vermont Attorney General may seek a court order to compel compliance with the law . Employers who retaliate against employees who oppose or report violations of the law may also be subject to a private or Attorney General lawsuit for damages.
Finally, violations might also be used as evidence show other violations, such as race discrimination.
What if an employee becomes pregnant? Pregnancy or childbirth may limit a woman’s ability to perform a job. Under Act 21, employers must provide reasonable accommodations to such women, unless those accommodations would be an undue hardship on the employer.
What if the job involves heavy lifting? The employer must provide reasonable accommodations, such as providing lifting equipment.
What is an “undue hardship”? An “undue hardship” is an accommodation that would be significantly difficult or expensive to put into place.
What if the woman can no longer perform the essential functions of the job? The employer must engage in an ongoing discussion with the employee to explore different options that may accommodate the employee so that she can perform the essential functions of the job. At the end of the day the employee must be able to perform the essential job functions, with or without accommodations.
When does this law take effect? January 1, 2018.
Beware: existing disability law has the same requirements. As an employer, you should provide reasonable accommodations to women with limitations caused by pregnancy, childbirth and related issues.
What are the penalties for failure to provide accommodations? All the sanctions of the Fair Employment Practices Act, including damages and attorney’s fees.
What is an equipment lease? The most common complaints received by CAP from business consumers involve credit card equipment leases.
The leases are generally financed by third parties. An “independent” salesperson works to sell you, the business consumer, a lease. Typically, credit card machines cost less than $500. Yet, in the typical credit card equipment lease, however, you end up paying thousands of dollars—pure profit for the salesperson and finance companies.
Can I cancel my lease? The typical lease’s term is 4 years, and is expressly not cancellable. Nonetheless, under Vermont’s Home Solicitation Sales Law, you usually have a legal right to cancel a sale made either in person or by phone within three days of the sale provided certain requirements are met. The seller must provide you with notice of this three-day right to cancel. If you did not receive such notice, then you may cancel your lease at any time until that notice is provided.
Is it ok to sign a personal guaranty with an equipment lease? The standard lease includes a personal guaranty. This means that even if your business closes, you personally are on the hook to continue paying the lease — even if you can’t use the credit card machine.
Does the salesperson who sold me this lease work for the company financing my lease? Financing companies recruit salespeople with promises of a lucrative career selling equipment leases. However, financing companies try to limit their responsibility by treating their salespeople as independent contractors. It is important to remember that while you may be signing up with a person who has made you promises, your lease is with the financing company. Promises made by the salesperson must be reflected in the written lease. Otherwise, the financing company may refuse to honor a salesperson’s promises.
Where should I research a lease? Your local Chamber of Commerce may have references for responsible local suppliers. You can also call us at CAP (800-649-2424) to see if we have recent complaints of a supplier you are considering.
Does a nursing parent have rights to pump breast milk in the workplace? Yes. The Legislature granted parents and babies such rights in 2013. This right exists for the first three years after birth of the child. The usual term for pumping breast milk is “to express” breast milk.
Why does the Legislature care about breast-feeding? Research has shown that breast-feeding:
promotes improved health outcomes,
provides the best nutrition for the baby,
keeps a close emotional bond between mother and child,
saves money,
avoids health risks of baby formula,
results in greater ability for the nursing parent to work, since breastfed babies are sick less often.
Vermont law supports nursing mothers.
What are the employer’s obligations to employees who are nursing parents?
Time–The employer must provide reasonable time throughout the day for the employee to express breast milk.
Place–The employer must provide an appropriate private space that is not a bathroom.
Does the parent get paid while expressing breast milk? Only at the employer’s discretion. A collective bargaining agreement could provide for compensation.
Are there any exemptions? There is no explicit exemption based on the size of the business. An employer is exempt only if the employer can prove that providing time or appropriate private space would substantially disrupt the employer’s operations.
What can an employer do to help nursing parents?
Understand the law
Inform employees of the new policy
Provide a clean, private place with access to electric outlets and a chair
Offer flexible breaks to nursing mothers
Apply for Breastfeeding Friendly Employer recognition
What are the penalties for violation? The law can be enforced by the parent or by the State under the Vermont Fair Employment Practices Act. 21 V.S.A. § 495b. Violators are assessed damages and attorney’s fees.
Do I have to allow time on-the-job for a parent to express milk? Yes, unless you can demonstrate that doing so would substantially disrupt the employer’s operations. In most cases, employers can work out a schedule and suitable space.
What kind of space? The space must be shielded from view. The space must be sanitary and private—free from intrusion by coworkers or the public. The space cannot be a bathroom.
Do we need to have a permanent, dedicated space? No. The employer can create or convert a temporary space. If the space is not dedicated to nursing parents’ use, the space must be available when needed.
Do we need to provide a space even if they don’t have employees who are nursing parents? No.
But I’ve heard that there is a small business exemption from federal law for small businesses. Federal law provides a theoretical exemption for a small business with less than 50 employees where the business can show an undue hardship, but there is no such exemption under Vermont law. Here is a description of federal law on breastfeeding in the workplace. Since there is no small business exemption under Vermont law, Vermont law dictates.
Are there other Vermont laws that assist nursing parents? Yes. Vermont law gives parents a right to breastfeed their child in any place where they have a legal right to be present — see 4502(j).
The Legislature found that paid sick leave would provide a healthier work environment for all Vermonters. However, about half of private-sector employees—60,000—lacked paid sick leave.
These Vermonters were generally employees of Vermont small businesses.
What employers does this law cover?
Almost all employers are covered. There are some exceptions listed below. Since mainly small businesses lacked leave programs, the law affects mostly small businesses.
New employers are exempt for the first year that the business hires any employees. 21 V.S.A. § 486(a).
When did the law go into effect?
January 1, 2017. There is a one-year grace period for employers with five or less employees. These very small employers have until January 1, 2018 to comply with the use of leave, but not the accrual.
What must an employer do?
Employers must accrue paid sick leave for all employees–at least one hour of sick leave for every 52 hours an employee actually works. The accrual must begin by January 1, 2017. See Footnote 1.
Okay, so there are 2080 hours per year when some works a 40-hour work week.
Yes, and 2080 ÷ 52 = 40 hours that a person would earn in an average year with no vacation. So the law anticipates some sick leave accrual for Vermonters working even more hours than a standard work-year.
When can an employee use the accrued sick leave?
For this year and 2018, an employee can use up to 24 hours of earned sick time a year. Starting in 2019, an employee can use up to 40 hours per year.
However, an employer may embargo the use of sick leave until January 1, 2018, or one year after the employee is first employed.
What can the sick leave be used for?
The sick leave can be used for the employee, or
child,
spouse,
parent,
grandparent, or
step-parent of the employee.
The sick leave can also be used for sickness (see Footnote 2) or injury of help any of the above, and to:
Obtain health care or long-term care
Travel to an appointment related to the above
Address the effects of domestic violence or stalking.
How much does an employer have to pay when sick leave is used?
The normal hourly wage rate, which better be at least the minimum wage. See Footnote 3. If less than a full workday, then the employee can be charged as sick leave only for whatever time is actually used.
What does the law say about unused, accrued paid sick leave?
Sick leave carries over from year to year. However, the limitations on use of leave (24 hours per year until 2018) still apply. Obviously, the employer can allow more use of leave than the minimums. See Footnote 4. Alternatively, an employer can pay the employee for unused sick time.
If the employer offers the full possible sick leave to employees at the beginning of the annual period (before the leave is actually earned), then the employer does not need to carry-over unused leave from the previous year. 21 V.S.A. § 484(a)(2).
What if the employee leaves? See Footnote 5. Must the employer pay for unused sick leave?
No … unless the employer had agreed to pay for unused sick leave.
Must an employee use sick leave when sick?
If the employer requires use of sick leave, then the employee must use sick leave. 21 V.S.A. § 483(f).
However, the employer and employee can agree on alternatives, if they both prefer.
They can agree that the employee:
simply to make up the lost time, or
trade hours so that another employee works during the sick time, and the employee with the sick time makes up the work for the other employee.
However, these options are simply options available by agreement.
Can the employer require the employee to find a replacement worker during sick leave absences?
No.
What happens if I fail to follow the paid leave law?
The Act makes an employer liable for damages. There is a criminal penalty for fraud.
If the failure is part of a larger claim—such as disability discrimination—it is certainly possible that the failure would be used as evidence of such discrimination.
Are there exceptions?
There are a several exceptions:
First, people who are exempt:
Children (that is, people under age 18).
Part-time and part-year employees in two situations:
Who work an average of less than 18 hours a week—averaged over a year.
Who work 20 weeks or less in a 12-month period if the job was never scheduled to last no longer.
Executive officers, managers or members specifically approved by the Commissioner of Labor (21 V.S.A. § 601(14)(H)).
Sole proprietors and partner-owner of an unincorporated business who qualifies a 7-part test, under 9 V.S.A. § 601(14)(F) (See the next question.)
What is the 7-part test for sole proprietors and partner-owners?
The exemption for sole proprietors and partner-owners applies only to those who meet a 7-part test. (This test generally reflects concerns regarding misclassification.)
Here is the seven-part test:
1. The work 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.
3. The individual acts as an independent business.
4. The individual works for the general public
5. The individual does not perform work exclusively for or with another person.
6. The individual is not an employee for purposes of income or employment taxation with regard to the work performed.
7. The individual’s services are:
performed under a written agreement, and
the agreement 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, and
the agreement includes information regarding the right of the individual to purchase workers’ compensation insurance coverage and the individual’s election not to purchase that coverage. See 9 V.S.A. § 601(14)(F).
Second, certain employers are exempt, often with qualification.:
The Federal government (because of preemption under the U.S. Constitution).
The State of Vermont (because there are statutory benefits and collective bargaining agreements). Temporary employees working for the State do get the benefits of the Act.
Health-care facilities under 18 V.S.A. § 9432(8) or 33 V.S.A. § 7102(2) if the employee works on a per diem or intermittent basis.
School districts, supervisory districts or supervisory unions meeting
Footnotes
1 There is an exemption for employees not covered by the Fair Labor Standards Act, 29 U.S.C. § 213(a)(1). Those exempt employees may be limited to accruing sick leave on the first 40 hours per week. 21 V.S.A. § 482(c)(2).
2 The sick leave can also be used to care for a family member if a business or school is closed for public health or safety reasons.
3 The minimum wage is set at 21 V.S.A. § 384. See 21 V.S.A. § 482(d).
4 9 V.S.A. § 483(d).
5 If the employee is then rehired, then he or she can use sick leave immediately, but does not retain sick leave accrued before the break, unless the employer agrees. 21 V.S.A. § 483(f).
