§ 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.
§ 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.)
§ 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.)
§ 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
(a) 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; and
(2) make a reasonable accommodation to provide appropriate private space that is not a bathroom stall.
(b) 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.
(c) An employer shall not retaliate or discriminate against an employee who exercises the right provided under this section.
(d) 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, 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.)
§ 341. Definitions
(a) "Employee" as used in this chapter 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.
(b) "Employer" as used in sections 342-345 of this title means any person having employees in his or her service. (Amended 1963, No. 198, § 1; 1995, No. 184 (Act. Sess.), § 3.)
§ 342. Weekly payment of wages
(a) Any person having employees in his or her service doing and transacting business within the state shall pay each week, in lawful money or checks, each of his or her employees, the wages earned by such employee to a day not more than six days prior to the date of such payment.
(b) After giving written notice to his or her employees, any person having employees in his or her service doing and transacting business within the state may, notwithstanding subsection (a) of this section, pay bi-weekly or semi-monthly in lawful money or checks, each of his or her employees, 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.
(c)(1) An employee who voluntarily leaves his or her employment shall be paid on the last regular pay day, or if there is no regular pay day, on the following Friday.
(2) An employee who is discharged from employment shall be paid within 72 hours of his or her discharge.
(3) If an employee is absent from his or her regular place of employment on the employer's regular scheduled date of wages or salary payment such employee shall be entitled to such payment upon demand.
(d) With the written authorization of an employee, an employer may pay wages due the employee by deposit through electronic funds transfer or other direct deposit systems to a checking, savings or other deposit account maintained by the employee in any financial institution within or without the state. (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.)
§ 342a. Investigation of complaints of unpaid wages
(a) Upon complaint to the department of labor by an employee that wages have not been paid to the employee by the employer, the commissioner of labor or the commissioner's agent shall investigate the complaint, examine the employer's records, attempt to arrange a settlement between the employer and the employee and, if the attempt fails, shall, upon a finding based on clear and convincing evidence that unpaid wages are owed to the employee by the employer, collect from the employer the amounts due and remit them to the employee.
(b) If the commissioner finds that the unpaid wages were willfully withheld by the employer, the commissioner may collect from the employer an additional amount not to exceed twice the amount of the 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 estimated administrative and collection costs.
(c) The commissioner shall enforce an order for collection under this section in superior court. The commissioner may authorize an agent to administer oaths and to compel testimony for the purposes of this section. (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.)
§ 342b. Repealed. 1999, No. 119 (Adj. Sess.), § 20, eff. May 18, 2000.
§ 343. Form of payment
Such employer shall not pay its employees with any form of evidence of indebtedness including, without limitation, all scrip, vouchers, due bills, or store orders, unless:
(1) the employer is a cooperative corporation in which the employee is a stockholder. However, such cooperative corporation shall, upon request of any such shareholding employee, pay him or her as provided in section 342 of this title; or
(2) payment is made by check as defined in Title 9A. (Amended 1977, No. 244 (Adj. Sess.), § 4, eff. May 1, 1978.)
§ 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 said section 342. Such employer shall not require an agreement from an employee to accept wages at any other period as a condition of employment.
§ 345. Penalty for nonpayment of wages
Each employer who violates sections 342 and 343 of this title and the officers of any corporation, cooperative or stock association, who fraudulently permit their corporation, or cooperative association to violate these sections, shall be fined not more than $ 500.00 or imprisoned not more than one year or both. Upon conviction, the court shall make an order requiring the payment of wages due and not paid. (Amended 1963, No. 188, § 1.)
§ 345a. Failure of any employer to provide benefits for employees
In addition to any other penalty or punishment otherwise prescribed by law, any employer who is party to a written agreement to provide benefits or wage supplements, and who fails to pay the amount required by the agreement:
(1) shall be liable to the employee for actual damages caused by the failure to pay; and
(2) where the failure to pay is fraudulently made and continues for 30 days after such payments are required to be made, shall be fined not more than $500.00 or imprisoned not more than one year, or both. Where the employer is a corporation, the president and other officers who have control of funds of the corporation shall be considered employers for the purposes of this section. The court, in passing sentence, shall make an order requiring the employer to pay over to the employee the benefits or wage supplements to which he or she is entitled. (Added 1963, No. 188, § 2; amended 1977, No. 244 (Adj. Sess.), § 5, eff. May 1, 1978.)
§ 346. Repealed. 1977, No. 244 (Adj. Sess.), § 9, eff. May 1, 1978.
§ 347. Forfeiture
A person 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, no action may 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.)
§ 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.
§ 382. Coverage
Employers employing two employees or more are covered by this subchapter.
§ 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:
(A) any individual employed in agriculture;
(B) any individual employed in domestic service in or about a private home;
(C) any individual employed by the United States;
(D) any individual employed in the activities of a public supported nonprofit organization, except laundry employees, nurses' aides or practical nurses;
(E) any individual employed in a bona fide executive, administrative or professional capacity;
(F) any individual making home deliveries of newspapers or advertising;
(G) taxi-cab drivers;
(H) outside salespersons; and
(I) 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) [Deleted.] (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.)
§ 384. Employment; wages
(a) An employer shall not employ an employee at a rate of less than $7.25, and, beginning January 1, 2007, 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. 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 $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. For the purposes of 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. If the minimum wage rate established by the United States 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 United States government.
(b) 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 which is an amusement or recreational establishment, if:
(A) it does not operate for more than seven months in any calendar year; or
(B) 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 which 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:
(A) the employer pays the employee on a biweekly basis; and
(B) the employer files an election to be governed by this section with the commissioner; and
(C) the employee receives not less than one and one-half times the regular wage rate for any work done by the employee:
(i) in excess of eight hours for any workday; or
(ii) 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 U.S. Federal Fair Labor Standards Act.
(c) 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. (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.)
§ 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:
(A) Reduce the total remuneration received by an employee below the hourly minimum wage.
(B) Include any administrative fees or charges.
(C) 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.)
§ 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.
§§ 387-389. Repealed. 1995, No. 188 (Adj. Sess.), § 4.
§ 390. Repealed. 2001, No. 47, § 8.
§ 390a. Repealed. 2001, No. 47, § 3.
§ 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.)
§ 392. Court proceedings
If any employer covered by a wage order has failed to comply with the wage order within 10 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.)
§ 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.
§ 394. Penalties
(a) 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.
(b) 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.)
§ 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 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.)
§ 396. Appeals from commissioner's decisions
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) Costs. In any proceedings under this subchapter the court may make such award of costs as may seem equitable and just.
(f) 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.)
§ 430. Policy; definitions; rules
(a) 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.
(b) 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 the commissioner's 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.
(c) 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.)
§ 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.)
§ 432. -Restrictions
(a) 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:
(A) 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.
(B) 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.
(C) 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 commissioner 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.
(b) 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 section 1123 of Title 16. (Amended 1987, No. 4, § 1, eff. March 10, 1987; 2001, No. 68, § 3.)
§ 433. Repealed. 2001, No. 68, § 16(1).
§ 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.)
§ 435. Examination and report
When so ordered by the commissioner of education, the superintendent of schools for the school district where the child under 16 resides shall examine the child for the purpose of determining the child's eligibility for employment in accordance with the provisions of sections 432 and 433 of this title and shall, upon the completion of the examination, make a written report to the commissioner of education who shall transmit a copy of the report to the commissioner. (Amended 2001, No. 68, § 5.)
§ 436. Employment of children under 14 years
A child under 14 years of age shall not be employed, permitted or suffered 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.)
§ 437. Employment of children; special restrictions; hours for children under 16 years
(a) Except as provided in section 438 of this title, a child shall not be employed, permitted or suffered 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.
(b) 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.)
§ 438. -Exceptions
A child over 14 years of age, who is enrolled in a 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 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.)
§§ 439Repealed. 1969, No. 218 (Adj. Sess.), § 4, eff. March 27, 1970.
§ 440. Repealed. 2001, No. 68, § 16(2).
§ 441. Repealed. 2001, No. 68, § 16(5).
§ 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.)
§§ 443Repealed. 2001, No. 68, § 16(3).
§ 444. Repealed. 1969, No. 218 (Adj. Sess.), § 4, eff. March 27, 1970.
§ 444a. Employment of aliens
(a) 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.
(b) No employer or agent for an employer shall knowingly recruit, solicit or refer for employment, or employ, an illegal alien.
(c) 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.
(d) 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.)
§ 445. Repealed. 1969, No. 218 (Adj. Sess.), § 4, eff. March 27, 1970.
§ 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.)
§ 447. Repealed. 2001, No. 68, § 16(4).
§ 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.)
§ 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.)
§ 450. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.
§ 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.
§ 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.)
§ 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.)
§ 470. Purpose
(a) 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.
(b) 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.
(c) 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.)
§ 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:
(A) The serious illness of the employee.
(B) 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:
(A) The birth of the employee's child.
(B) 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:
(A) poses imminent danger of death;
(B) requires inpatient care in a hospital; or
(C) 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.)
§ 472. Leave
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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.)
§ 472a. Short-term family leave
(a) 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.
(b) 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.
(c) 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
(a) 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. An employer shall not discharge or in any other manner retaliate against an employee for exercising the right provided by this section.
(b) 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.
(c) The requirement of subsection (b) shall not apply to a student who is in state custody in a secure facility.
(d) 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.)
§ 473. Retaliation prohibited
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 a provision of this subchapter; or
(2) the employee has cooperated with the attorney general or a state's attorney in an investigation of a violation of a provision of this subchapter; or
(3) the employer believes that the employee may lodge a complaint or cooperate in an investigation of a violation of a provision of this subchapter. (Added 1989, No. 83, § 1.)
§ 474. Enforcement
(a) The attorney general or a state's attorney may enforce the provisions of this subchapter 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 court costs. The attorney general or a state's attorney may conduct an investigation to obtain voluntary conciliation of an alleged violation. Such investigation shall not be a prerequisite to the bringing of a court action.
(b) As an alternative to subsection (a) of this section, an employee entitled to leave under this subchapter who is aggrieved by a violation of a provision of this subchapter may bring a civil action for temporary or permanent injunctive relief, economic damages, including prospective lost wages for a period not to exceed one year, attorney fees and court costs.
(c) 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.)
§ 491. Absence on military service and training; employment and reemployment rights
(a) Any duly qualified member of the "reserve components of the armed forces," of the ready reserve, or an organized unit of the national guard shall upon request be entitled to leaves of absence for a total of 15 days in any calendar year for the purpose of engaging in military drill, training, or other temporary duty under military authority. A leave of absence shall be with or without pay as determined by the employer. Upon completion of the military drill, training, or other temporary duty under military authority, a permanent employee shall be reinstated in that position with the same status, pay, and seniority, including seniority that accrued during the period of absence.
(b) 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, 601, or 602, 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.
(c) 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 subsection or federal law.
(2) Testified or made a statement in connection with any proceeding under this subsection or under federal law.
(3) Assisted or participated in any investigation under this subsection or federal law.
(4) Exercised any right provided by this subsection or under federal law. (Amended 1999, No. 138 (Adj. Sess.), § 6; 2007, No. 44, § 1.)
§ 492. Rights and benefits
(a) 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.
(b) 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 United States Code §§ 4312-4318. (Amended 1999, No. 138 (Adj. Sess.), § 6.)
§ 493. Enforcement
(a) If any employer fails to comply with any of the provisions of this subchapter, the employee may bring an action at law for damages for noncompliance, or apply to the superior court for equitable relief as may be just and proper under the circumstances.
(b) 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.)
§ 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 chapter 53 of Title 26.
(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.)
§ 494a. Polygraph testing as condition of employment
(a) 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.
(b) 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.)
§ 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 control and the liquor control board, 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 section 4201 of Title 18; 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.)
§ 494c. Duties of examiner
(a) 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:
(A) the examinee has the right to accept or refuse the examination;
(B) the examinee has the right to halt an examination in progress at any time;
(C) the examinee is not required to answer any questions or give any information;
(D) 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
(E) 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.
(b) 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.)
§ 495. Unlawful employment practice
(a) 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, 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, or age or against a qualified disabled individual;
(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, 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, or age or against a qualified disabled individual;
(4) For any labor organization, because of race, color, religion ancestry, national origin, sex, sexual orientation, gender identity, place of birth, or age to discriminate against any individual or against a qualified disabled individual or to limit, segregate or qualify its membership;
(5) For any employer, employment agency, or labor organization to discharge or in any other manner discriminate against any employee because such employee has lodged a complaint of discriminatory acts or practices or has cooperated with the attorney general or a state's attorney in an investigation of such practices, or is about to lodge a complaint or cooperate in an investigation, or because such employer believes that such employee may lodge a complaint or cooperate with the attorney general or state's attorney in an investigation of discriminatory acts or practices;
(6) 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;
(7) 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;
(8) 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.
(A) An employer may pay different wage rates under this subsection when the differential wages are made pursuant to:
(i) A seniority system.
(ii) A merit system.
(iii) A system in which earnings are based on quantity or quality of production.
(iv) Any factor other than sex.
(B) No employer may do any of the following:
(i) Require, as a condition of employment, that an employee refrain from disclosing the amount of his or her wages.
(ii) 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.
(iii) Discharge, formally discipline, or otherwise discriminate against an employee who discloses the amount of his or her wages.
(b) The provisions of this section shall not be construed to limit the rights of employers to discharge employees for good cause shown.
(c) 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.
(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)(6) and (7) of this section.
(2) A person shall not have a cause of action in negligence for any injury occurring to the person on the account of an employer complying with subdivisions (a)(6) and (7) of this section.
(e) 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, which 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 which is calculated by the organization to promote the religious principles for which it is established or maintained.
(f) The provisions of this section prohibiting discrimination on the basis of sexual orientation or gender identity shall not be construed to change the definition of family or dependent in an employee benefit plan.
(g) 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. (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.)
§ 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
(a) 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 sections 2458-2461 of Title 9 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 sections 2458 and 2461 of Title 9 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.
(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)(8) 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.)
§ 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
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 such employer, 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) "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 which 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 which represents not less than five employees and which 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:
(A) has a physical or mental impairment which substantially limits one or more major life activities;
(B) has a history or record of such an impairment; or
(C) is regarded as having such an impairment.
(6) "Qualified individual with a disability" means:
(A) 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.
(B) 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:
(A) 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;
(B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities;
(C) the term "physical or mental impairment" includes but is not limited to such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, 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
(A) 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;
(B) 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
(C) has none of the impairments defined in subdivision (7)(A) of this section but is treated by an employer as having such an impairment.
(12) "Reasonable accommodation" means the changes and modifications which 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. Reasonable accommodation may include:
(A) 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
(B) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices and other similar actions;
(C) 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:
(i) 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
(ii) the cost for the accommodation needed.
(13) "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:
(A) submission to that conduct is made either explicitly or implicitly a term or condition of employment; or
(B) 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
(C) 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. (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.)
§ 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.)
§ 495g. Provision applicable to college professors
Nothing in this act 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.)
§ 495h. Sexual harassment
(a) All employers, employment agencies and labor organizations have an obligation to ensure a workplace free of sexual harassment.
(b) Every employer shall:
(1) Adopt a policy against sexual harassment which shall include:
(A) a statement that sexual harassment in the workplace is unlawful;
(B) 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;
(C) a description and examples of sexual harassment;
(D) a statement of the range of consequences for employees who commit sexual harassment;
(E) 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
(F) 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) Employers shall provide individual copies of their written policies to current employees no later than November 1, 1993, and to new employees upon their being hired. Employers who have provided individual written notice to all employees within the 12 months prior to October 1, 1993, shall be exempt from having to provide an additional notice during the 1993 calendar year.
(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) Employers and labor organizations are encouraged to conduct an education and training program within one year after September 30, 1993 for all current employees and members, and for all new employees and members thereafter within one year of commencement of employment, that includes at a minimum all the information outlined in this section. Employers are encouraged to conduct additional training for current supervisory and managerial employees and members within one year of September 30, 1993, and for new supervisory and managerial employees and members within one year of commencement of employment or membership, which should include at a minimum the information outlined in subsection (b) of this section and the specific responsibilities of supervisory and managerial employees and the methods 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. (Added 1993, No. 39, § 4, eff. Oct. 1, 1993; amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.)
§ 496. Legislative leave
(a) 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.
(b) 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 section 2353 of Title 17 or of taking any other action required by chapter 49 of Title 17, 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.
(c) 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 chairman of the state labor relations board created by section 921 of Title 3. 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.
(d) The chair of the state labor relations board, or any member of the board designated by the chairman, 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.
(5) Any agreement entered into between the employee and employer as a condition of employment.
(e) This section is not applicable if the employer employs five or fewer persons immediately prior to the first day of the leave of absence.
(f) 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.).)
§ 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.)
§ 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 21 members, including a representative of the Vermont employment service division, one representative of the vocational rehabilitation division of the department of disabilities, aging, and independent living, one representative of the veterans' administration, one representative of the veterans' employment service 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. Those persons acting as said committee on June 29, 1963 shall continue as such until their successors are appointed as herein provided. (1963, No. 200, § 2, eff. June 29, 1963; amended 1991, No. 168 (Adj. Sess.), § 3; 2005, No. 174 (Adj. Sess.), § 51.)
§ 497b. Duties
(a) 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 more effectively carry out the purposes of this subchapter.
(b) Beginning in 1987, the committee shall submit a report by January 15 of each odd-numbered year to the house and senate committees on government operations outlining its activities. (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.)
§ 497c. Disability awareness month
The month of October is designated as "Disability Awareness Month." (1963, No. 200, § 4, eff. June 29, 1963; amended 1991, No. 168 (Adj. Sess.), § 5.)
§ 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.)
§ 497e. Funds; revenue; use
(a) 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.
(b) The chair or his or her designated representative may authorize the sale of products which relate to handicapped Vermonters and the revenue therefrom shall be placed in the account of the governor's committee on employment of people with disabilities.
(c) 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.
(d) 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.
(e) 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.)
§ 498. Repealed. 1981, No. 65, § 6.
§ 499. Jurors and witnesses
(a) 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.
(b) 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.
(c) 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.)
§ 501. Definitions
As used in this subchapter:
(1) "Blind or visually impaired person" 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).)
§ 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 blind or visually impaired persons for the operation of vending facilities on state property;
(4) provide vending facility equipment and an adequate initial stock of suitable articles to licensed blind or visually impaired persons;
(5) provide the necessary training and supervision to licensed blind or visually impaired persons;
(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.)
§ 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.)
§ 504. Income from vending facilities and machines
(a) All net income from a vending facility on state property shall accrue to the blind or visually impaired person licensed to operate that facility.
(b) All net income from vending machines not placed within vending facilities on state property shall accrue to the division.
(c) 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, but not limited to, health insurance or pension plans for licensed blind or visually impaired persons 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.)
§ 505. Vending facilities; operation by other than blind or visually impaired person
Where vending facilities on state property are operated by those other than blind or visually impaired persons 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 blind and visually impaired person. 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 blind or visually impaired person. (Added 1983, No. 221 (Adj. Sess.), § 2.)
§ 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;
(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).)
§ 507. Whistleblower protection; health care employees; prohibitions; hearing; notice
(a) 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:
(A) a hospital as defined in subdivision 1902(1) of Title 18; or
(B) a nursing home as defined in subdivision 7102(7) of Title 33.
(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:
(A) the United States Congress, any state legislature or any popularly elected local government body, or any member or employee thereof;
(B) any federal, state, or local judiciary, or any member or employee thereof, or any jury;
(C) any federal, state, or local regulatory, administrative, or public agency or authority, or instrumentality thereof;
(D) any federal, state, or local law enforcement agency, prosecutorial office, or police or peace officer; or
(E) 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.
(b) 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.
(c) 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.
(d) 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.)
§ 508. Enforcement
(a) 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.
(b) 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.
(c) No later than July 1, 2005, all hospitals as defined in subdivision 1902(1) of Title 18 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.
(d) 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 fees; or
(7) any other appropriate relief. (Added 2003, No. 134 (Adj. Sess.), § 2.)
§ 509. Notice
(a) 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.
(b) 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.
(c) 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.)
§ 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 chapter 25 of Title 3, add drugs to this list not recognized as being commonly abused and likely to cause impairment of the employee on the job at the time of the passage of this act.
(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 chapter 84 of Title 18 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 United States 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.)
§ 512. Drug testing of applicants; prohibitions; exceptions
(a) 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.
(3) Request or require that an applicant for employment consent, directly or indirectly, to a practice prohibited under this subchapter.
(b) 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.)
§ 513. Drug testing of employees; prohibitions; exceptions
(a) 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.
(3) Request or require that an employee consent, directly or indirectly, to a practice prohibited under this subchapter.
(b) 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.
(c) 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:
(A) 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
(B) 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:
(A) The unique identifier code of the person tested.
(B) The type of test conducted for both initial screening and confirmation.
(C) The results of each test.
(D) The detection level, meaning the cut-off or measure used to distinguish positive and negative samples, on both the initial screening and confirmation procedures.
(E) The name and address of the laboratory.
(F) 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.)
§ 515. Positive test results; opportunity to retest
(a) 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.
(b) 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.)
§ 516. Confidentiality
(a) Any health care information about an individual to be tested shall be taken only by a medical review officer and 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.
(b) Employers, medical review officers, laboratories and their agents, 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. A medical review officer shall not reveal the identity of an individual being tested to any person, including the laboratory.
(c) 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.)
§ 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
(a) 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.
(b) 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.
(c) The commissioner of health shall adopt rules pursuant to chapter 25 of Title 3 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.)
§ 519. Enforcement
(a) 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.
(b) 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.
(c) 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.
(d) 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. Transitory provisions
(a) On or before July 1, 1989, the commissioner of health pursuant to chapter 25 of Title 3 shall set nontherapeutic levels of therapeutic drugs by establishing a range of values by considering average medical use for each particular drug or metabolite authorized to be tested under this subchapter.
(b) Until July 1, 1989, the test shall be administered to detect the presence of alcohol or drugs as defined in subdivision 511(3) of this title. Subdivisions 514(1) and 514(8) of this title insofar as they apply to testing only for nontherapeutic levels shall not take effect until July 1, 1989.
(c) Until July 1, 1989, if an applicant receives a positive test result and has a valid predated prescription for the drug tested, the positive test result may not in and of itself be sufficient reason for not hiring an applicant. Until July 1, 1989, if an employee receives a positive test result and has a valid predated prescription for the drug tested, the positive test result may not in and of itself be sufficient reason for requiring that the employee participate in an employee assistance program or for disciplining or dismissing the employee.
(d) The commissioner of health on or before January 15, 1989 shall issue a progress report to the house and senate committees on general affairs on the ability of the commissioner to comply with subsection (a) of this section. (Added 1987, No. 61, eff. May 22, 1987.)
§ 561. Health coverage status discrimination prohibited
(a) 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.
(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:
(A) an employer, employment agency, or agent from informing an applicant about the employer's health coverage benefits; or
(B) 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.
(c) 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.)