The Vermont Statutes Online

Title 21: Labor

Chapter 5: EMPLOYMENT PRACTICES

 

Sub-Chapter 1: Conditions For Employment

§ 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 or attempts to exercise the rights provided under this section. The provisions against retaliation in subdivision 495(a)(8) of this title and the penalty and enforcement provisions of section 495b of this title shall apply to this section.

(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; amended 2013, No. 31, § 4.)

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

In support of the State's fundamental interest in protecting the safety of minors and vulnerable adults, as defined in 33 V.S.A. § 6902, it is the policy of the State of Vermont that no confidential employment separation agreement shall inhibit the disclosure to prospective employers of factual information about a prospective employee's background that would lead a reasonable person to conclude that the prospective employee has engaged in conduct jeopardizing the safety of a minor or vulnerable adult. Any provision in an agreement entered into on or after the effective date of this section that attempts to do so is void and unenforceable. (Added 2009, No. 157 (Adj. Sess.), § 17, eff. June 3, 2010.)

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 Repealed. 2011, No. 56, § 27(2), eff.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

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 Repealed. 2011, No. 56 § 28(2).

[Section 309 effective January 1, 2014.]

[Section 309 effective January 1, 2014.]§ 309. Flexible working arrangements

(a)(1) An employee may request a flexible working arrangement that meets the needs of the employer and employee. The employer shall consider a request using the procedures in subsections (b) and (c) of this section at least twice per calendar year.

(2) As used in this section, "flexible working arrangement" means intermediate or long-term changes in the employee's regular working arrangements, including changes in the number of days or hours worked, changes in the time the employee arrives at or departs from work, work from home, or job-sharing. "Flexible working arrangement" does not include vacation, routine scheduling of shifts, or another form of employee leave.

(b)(1) The employer shall discuss the request for a flexible working arrangement with the employee in good faith. The employer and employee may propose alternative arrangements during the discussion.

(2) The employer shall consider the employee's request for a flexible working arrangement and whether the request could be granted in a manner that is not inconsistent with its business operations or its legal or contractual obligations.

(3) As used in this section, "inconsistent with business operations" includes:

(A) the burden on an employer of additional costs;

(B) a detrimental effect on aggregate employee morale unrelated to discrimination or other unlawful employment practices;

(C) a detrimental effect on the ability of an employer to meet consumer demand;

(D) an inability to reorganize work among existing staff;

(E) an inability to recruit additional staff;

(F) a detrimental impact on business quality or business performance;

(G) an insufficiency of work during the periods the employee proposes to work; and

(H) planned structural changes to the business.

(c) The employer shall notify the employee of the decision regarding the request. If the request was submitted in writing, the employer shall state any complete or partial denial of the request in writing.

(d) This section shall not diminish any rights under this chapter or pursuant to a collective bargaining agreement. An employer may institute a flexible working arrangement policy that is more generous than is provided by this section.

(e) The Attorney General, a state's attorney, or the Human Rights Commission in the case of State employees may enforce subsections (b) and (c) of this section by restraining prohibited acts, conducting civil investigations, and obtaining assurances of discontinuance in accordance with the procedures established in subsection 495b(a) of this title. An employer subject to a complaint shall have the rights and remedies specified in subsection 495b(a) of this title. An investigation against an employer shall not be a prerequisite for bringing an action. The Civil Division of the Superior Court may award injunctive relief and court costs in any action. There shall be no private right of action to enforce this section.

(f) An employer shall not retaliate against an employee exercising his or her rights under this section. The provisions against retaliation in subdivision 495(a)(8) of this title and the penalty and enforcement provisions of section 495b of this title shall apply to this section.

(g) Nothing in this section shall affect any legal rights an employer or employee may have under applicable law to create, terminate, or modify a flexible working arrangement. (Added 2013, No. 31, § 6, eff. Jan. 1, 2014.)

 

Sub-Chapter 2: Wages And Medium Of Payment

§ 341. Definitions

As used in this subchapter:

(1) "Employee" means a person who has entered into the employment of an employer, where the employer is unable to show that:

(A) 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

(B) 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

(C) the individual is customarily engaged in an independently established trade, occupation, profession or business.

(2) "Employer" means any person having employees in his or her service.

(3) "Commissioner" means the Commissioner of Labor or designee.

(4) "Department" means the Department of Labor.

(5) "Wages" means all remuneration payable for services rendered by an employee, including salary, commissions, and incentive pay. (Amended 1963, No. 198, § 1; 1995, No. 184 (Act. Sess.), § 3; 2013, No. 15, § 1.)

§ 342. Weekly payment of wages

(a)(1) Any employer having one or more employees doing and transacting business within the State shall pay each week, in lawful money or checks, the wages earned by each employee to a day not more than six days prior to the date of such payment.

(2) After giving written notice to the employee or employees, any employer having an employee or employees doing and transacting business within the State may, notwithstanding subdivision (1) of this subsection, pay biweekly or semimonthly in lawful money or checks each employee the wages earned by the employee to a day not more than six days prior to the date of the payment. If a collective bargaining agreement so provides, the payment may be made to a day not more than 13 days prior to the date of payment.

(3) A school district employee may elect in writing to have a set amount or set percentage of his or her after-tax wages withheld by the school district in a district-held bank account each pay period. The percentage or amount withheld shall be determined by the employee. At the option of the employee, the school district shall disburse the funds to the employee in either a single payment at the time the employee receives his or her final paycheck of the school year, or in equal weekly or biweekly sums beginning at the end of the school year. The school district shall disburse funds from the account in any sum as requested by the employee and, at the end of the school year or at the employee's option over the course of the period between the current and next school year, or upon separation from employment, shall remit to the employee any remaining funds, including interest earnings, held in the account. For employees within a bargaining unit organized pursuant to either chapter 22 of this title or 16 V.S.A. chapter 57, the school district shall implement this election in a manner consistent with the provisions of this subdivision and as determined through negotiations under those chapters. For employees not within a bargaining unit, the school district shall, in a manner consistent with this subdivision, determine the manner in which to implement this subdivision.

(b) An employee who:

(1) Voluntarily leaves employment shall be paid on the last regular pay day, or if there is no regular pay day, on the following Friday.

(2) Is discharged from employment shall be paid within 72 hours of discharge.

(3) Is absent from his or her regular place of employment on the employer's regular scheduled date of wages or salary payment shall be entitled to payment upon demand.

(c) With the written authorization of an employee, an employer may pay wages due the employee by any of the following methods:

(1) Deposit through electronic funds transfer or other direct deposit systems to a checking, savings, or other deposit account maintained by or for the employee in any financial institution within or without the State.

(2) Credit to a payroll card account directly or indirectly established by an employer in a federally insured depository institution to which electronic fund transfers of the employee's wages, salary, or other employee compensation is made on a recurring basis, other than a checking, savings, or other deposit account described in subdivision (1) of this subsection, provided all the following:

(A) The employer provides the employee written disclosure in plain language, in at least 10-point type of both the following:

(i) All the employee's wage payment options.

(ii) The terms and conditions of the payroll card account option, including a complete list of all known fees that may be deducted from the employee's payroll card account by the employer or the card issuer and whether third parties may assess fees in addition to the fees assessed by the employer or issuer.

(B) Copies of the written disclosures required by subdivisions (A) and (F) of this subdivision (c)(2) and by subsection (d) of this section shall be provided to the employee in the employee's primary language or in a language the employee understands.

(C) The employee voluntarily consents in writing to payment of wages by payroll card account after receiving the disclosures described in subdivision (A) of this subdivision (c)(2), and this consent is not a condition of hire or continued employment.

(D) The employer ensures that the payroll card account provides that during each pay period, the employee has at least three free withdrawals from the payroll card, one of which permits withdrawal of the full amount of the balance at a federally insured depository institution or other location convenient to the place of employment.

(E) None of the employer's costs associated with the payroll card account are passed on to the employee, and the employer shall not receive any financial remuneration for using the pay card at the employee's expense.

(F)(i) At least 21 days before any change takes effect, the employer provides the employee with written notice in plain language, in at least 10 point type, of the following:

(I) any change to any of the terms and conditions of the payroll card account, including any changes in the itemized list of fees;

(II) the employee's right to discontinue receipt of wages by a payroll card account at any time and without penalty.

(ii) The employer may not charge the employee any additional fees until the employer has notified the employee in writing of the changes.

(G) The employer provides the employee the option to discontinue receipt of wages by a payroll card account at any time and without penalty to the employee.

(H) The payroll card issued to the employee shall be a branded-type payroll card that complies with both the following:

(i) Can be used at a PIN-based or a signature-based outlet.

(ii) The payroll card agreement prevents withdrawals in excess of the account balance and to the extent possible protects against the account being overdrawn.

(I) The employer ensures that the payroll card account provides one free replacement payroll card per year at no cost to the employee before the card's expiration date. A replacement card need not be provided if the card has been inactive for a period of at least 12 months or the employee is no longer employed by the employer.

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

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

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

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

(d)(1) If a payroll card account is established with a financial institution as an account that is individually owned by the employee, the employer's obligations and the protections afforded under subsection (c) of this section shall cease 30 days after the employer-employee relationship ends and the employee has been paid his or her final wages.

(2) Upon the termination of the relationship between the employer and the employee who owns the individual payroll card account:

(A) the employer shall notify the financial institution of any changes in the relationship between the employer and employee; and

(B) the financial institution holding the individually owned payroll card account shall provide the employee with a written statement in plain language describing a full list of the fees and obligations the employee might incur by continuing a relationship with the financial institution.

(e) The department of financial regulation may adopt rules to implement subsection (c) of this section. (Amended 1963, No. 198, § 2; 1977, No. 44, § 1, eff. April 19, 1977; 1977, No. 244 (Adj. Sess.), § 2, eff. May 1, 1978; 1979, No. 100 (Adj. Sess.), § 1; 2009, No. 115 (Adj. Sess.), § 1, eff. May 21, 2010; 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012; 2011, No. 154 (Adj. Sess.), § 3; 2013, No. 15, § 2.)

§ 342a. Investigation of complaints of unpaid wages

(a) An employee or the Department on its own motion may file a complaint that wages have not been paid to an employee, not later than two years from the date the wages were due. The Commissioner shall provide notice and a copy of the complaint to the employer by service, or by certified mail sent to the employer's last known address, together with an order to file with the Department within 10 calendar days of receipt.

(b) The Commissioner shall investigate the complaint, and may examine the employer's records, enter and inspect the employer's business premises, question such employees, subpoena witnesses, and compel the production of books, papers, correspondence, memoranda, and other records necessary and material to investigate the complaint. If a person fails to comply with any lawfully issued subpoena, or a witness refuses to testify to any matter on which he or she may be lawfully interrogated, the Commissioner may seek an order from the Civil Division of the Superior Court compelling testimony or compliance with the subpoena.

(c) If after the investigation wages are found to be due, the Commissioner shall attempt to settle the matter between the employer and employee. If the attempt fails, the Commissioner shall issue a written determination and order for collection, which shall specify the facts and the conclusions upon which the determination is based. The Department shall collect from the employer the amounts due and remit them to the employee. Notice of the determination and the order for collection to the employer shall be provided to all interested parties by certified mail or service.

(d) If the Commissioner determines that the unpaid wages were willfully withheld by the employer, the order for collection may provide that the employer is liable to pay an additional amount not to exceed twice the amount of unpaid wages, one-half of which will be remitted to the employee and one-half of which shall be retained by the Commissioner to offset administrative and collection costs.

(e) Within 30 days after the date of the collection order, the employer or employee may file an appeal from the determination to a departmental administrative law judge. The appeal shall, after notice to the employer and employee, be heard by the administrative law judge within a reasonable time. The administrative law judge shall review the complaint de novo, and after a hearing, the determination and order for collection shall be sustained, modified, or reversed by the administrative law judge. Prompt notice in writing of the decision of the administrative law judge and the reasons for it shall be given to all interested parties.

(f) Notwithstanding any other provision of law, the employer or employee may appeal the decision of the administrative law judge within 30 days by filing a written request with the Employment Security Board. The appeal shall be heard by the Board after notice to the employee and employer. The Board may affirm, modify, or reverse the decision of the administrative law judge solely on the basis of evidence in the record or any additional evidence it may direct to be taken. Prompt notice of the decision of the Board shall be given to the employer and employee in the manner provided by section 1357 of this title. The Board's decision shall be final unless an appeal to the Supreme Court is taken. Testimony given at any hearing upon a complaint of unpaid wages shall be recorded, but the record need not be transcribed unless ordered. The costs of transcription shall be paid by the requesting party.

(g) The Commissioner may enforce a final order for collection under this section within two years of the date of the final order in the Civil Division of the Superior Court.

(h) Information obtained from any employer, employee, or witness in the course of investigating a complaint of unpaid wages shall be confidential and shall not be disclosed or open to public inspection in any manner that reveals the employee's or employer's identity or be admissible in evidence in any action or proceeding other than one arising under this subchapter. However, such information may be released to any public official for the purposes provided in subdivision 1314(e)(1) of this title. (Added 1965, No. 182; amended 1977, No. 244 (Adj. Sess.), § 3, eff. May 1, 1978; 1999, No. 119 (Adj. Sess.), § 19, eff. May 18, 2000; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2013, No. 15, § 3.)

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

§ 343. Form of payment

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

(1) The employer is a cooperative corporation in which the employee is a stockholder, in which case, the cooperative corporation shall, upon request of any shareholding employee, pay the shareholding employee as provided in section 342 of this title.

(2) Payment is made by check as defined in Title 9A or by an electronic fund transfer as provided in section 342 of this title. (Amended 1977, No. 244 (Adj. Sess.), § 4, eff. May 1, 1978; 2009, No. 115 (Adj. Sess.), § 1, eff. May 21, 2010.)

§ 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. Nonpayment of wages and benefits

(a) Each employer who violates sections 342 and 343 of this title shall be fined not more than $5,000.00. Where the employer is a corporation, the president or other officers who have control of the payment operations of the corporation shall be considered employers and liable to the employee for actual wages due when the officer has willfully and without good cause participated in knowing violations of this chapter.

(b) In addition to any other penalty or punishment otherwise prescribed by law, any employer who, pursuant to an oral or written employment agreement, is required to provide benefits to an employee shall be liable to the employee for actual damages caused by the failure to pay for the benefits, and where the failure to pay is knowing and willful and continues for 30 days after the payments are due shall be assessed a civil penalty by the Commissioner of not more than $5,000.00.

(c) The Commissioner may enforce collection of the fines assessed under this section in the Civil Division of the Superior Court. (Amended 1963, No. 188, § 1; amended 2013, No. 15, § 4.)

§ 345a. Repealed. 2013, No. 15, § 5.

§ 346. Repealed. 1977, No. 244 (Adj. Sess.), § 9, eff. May 1, 1978.

§ 347. Forfeiture

An employer who violates section 342 or 343 of this title shall forfeit to the individual injured twice the value thereof, to be recovered in a civil action, and all costs and reasonable attorney's fees. However, an action may not be maintained under this section unless at the time the action is brought, the wages remain unpaid or improperly paid. (Amended 1977, No. 244 (Adj. Sess.), § 6, eff. May 1, 1978; 1979, No. 100 (Adj. Sess.), § 2; 2013, No. 15, § 6.)

§ 348. Retaliation prohibited

(a) An employer shall not discharge or in any other manner retaliate against an employee because:

(1) the employee lodged a complaint of a violation of this subchapter;

(2) the employee has cooperated with the Commissioner in an investigation of a violation of this subchapter; or

(3) the employer believes that the employee may lodge a complaint or cooperate in an investigation of a violation of this subchapter.

(b) Any person aggrieved by a violation of this section may bring an action in the Civil Division of the Superior Court seeking compensatory and punitive damages or equitable relief, including restraint of prohibited acts, restitution of wages or benefits, reinstatement, costs, reasonable attorney's fees, and other appropriate relief. (Added 2013, No. 15, § 8.)

 

Sub-Chapter 3: Minimum Wages

§ 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.)

§ 397. Retaliation prohibited

(a) An employer shall not discharge or in any other manner retaliate against an employee because:

(1) the employee lodged a complaint of a violation of this subchapter;

(2) the employee has cooperated with the Commissioner in an investigation of a violation of this subchapter; or

(3) the employer believes that the employee may lodge a complaint or cooperate in an investigation of a violation of this subchapter.

(b) Any person aggrieved by a violation of this section may bring an action in the Civil Division of the Superior Court seeking compensatory and punitive damages or equitable relief, including restraint of prohibited acts, restitution of wages or benefits, reinstatement, costs, reasonable attorney's fees, and other appropriate relief. (Added 2013, No. 15, § 9.)

 

Sub-Chapter 4: Employment Of Children And Aliens

§ 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.)