DRM | Downs Rachlin Martin PLLC

Session Opens with Conciliatory Spirit

The legislature reconvened this week in an atmosphere noteworthy for its lack of rancor or partisanship. The placid environment is perhaps a reaction to the ongoing political chaos in Washington, D.C. Whatever the cause, the signs of peace and harmony were everywhere:
 

•	The Governor’s staff joined with environmentalists in proposing a surprisingly aggressive set of reforms to Act 250, Vermont’s revered land use statute – reforms that have eluded countless previous governors, commissions and legislators.
•	House Speaker Mitzi Johnson and Senate President Pro Tem Tim Ashe made clear that they’ve made amends and put their high-profile disagreement from last session behind them.
•	Senate Minority Leader Joe Benning, R-Caledonia, said he would consider endorsing progressive Democrat Tim Ashe in his candidacy for Lieutenant Governor.
•	Most significantly, the Governor’s annual State-of-the-State address was entirely devoid of any partisan or even controversial initiatives.

The Governor’s speech, in addition to its lack of partisanship, differed from most previous addresses in its lack of any real policy agenda. He understandably highlighted the state’s growing demographic crisis, which is exacerbated by an economy that is increasingly divided between a handful of thriving urban areas and a long list of “have not” communities suffering from declines in virtually every measure of success: jobs, residents, wages and property values.

As the legislature heard in a separate report this week, by 2020 one in four Vermonters will be over the age of 65. The state has had a zero percent growth rate in the last decade. Gov. Phil Scott failed to propose any new initiatives to reverse that trend, likely because there seem to be few policy options available.

While the Governor’s address was mostly a recitation of his administration’s successes, he did propose one major new initiative that got the attention of Democrats:  the creation of a universal afterschool network that would align students’ days with the length of the workday. House and Senate Education Committees will almost certainly embrace the offer to come up with a way to create this new program.

There will, of course, be controversy in the months ahead, and there were plenty of signs of what that might look like. The Governor’s address was interrupted for fifteen minutes by a crowd of climate change protesters in the House chamber. That is a precursor of future Statehouse discord on the issue of climate change legislation. Both the House and Senate are considering ambitious climate change bills, but Scott counseled caution, saying he “simply cannot support proposals that will make things more expensive” for Vermonters.

A handful of holdover disputes from last year are likely to be resolved soon, but without the acrimony that accompanied them last year. These include bills to create a medical monitoring cause of action; to create a mandatory paid family leave benefit; and to increase the minimum wage. In addition, the legislature will continue its work to create a tax-and-regulate system for marijuana – an effort that Scott would be happy to see go away.

None of these issues are going to create anything close to the harsh partisanship that exists in Washington. And that is something for which all Vermonters can be grateful.

Act 250 compromise brings strange bedfellows together

In a rare demonstration of compromise on Act 250, the Scott administration and Vermont’s environmental groups have agreed on a comprehensive package of changes to the state’s iconic land use law.

Read more

Paid family leave heads to conference committee

The paid family leave bill, H.107, was pulled off the legislative calendar on the first day of the session and sent back to the House General, Housing, and Military Affairs Committee.

Read more

Minimum wage moves to conference committee

Legislation to increase the state’s minimum wage, S.23, was taken off the House Calendar this week and moved back to the General, Housing, and Military Affairs Committee for further action.
  
Read more

DRM | Downs Rachlin Martin, PLLC

November 21, 2019

Strict Liability/Medical Monitoring Bill – S.37

Bill Status: Delivered to the Governor’s desk on 6/11 and he vetoed the bill. People anticipate the Legislature will attempt to override this veto when they return in January.

HBRA Legislative Activity:  Without the work of members of Home Builders and Remodelers working with HBRA’s lobbying team this bill would not have protections that clearly exempt our industry from liability for medical monitoring damages due to toxic substance exposure. House Judiciary Committee members made it clear that they took our concerns into consideration when redrafting this Senate bill. Our lobbyists worked with members of the Senate to ensure their acceptance of these changes and HBRA was able to prevail through all stages of this bill’s passage in the House and Senate.

Bill Description:  The bill proposes to establish a private right of action for medical monitoring damages incurred due to exposure to a toxic substance. It would affect companies with 10 or more employees.

 

Contractor Registry Bill – S.163

Bill Status:  Passed the Senate and is on the House calendar for action in January. 

HBRA Legislative Activity:  Our lobbying team worked collaboratively with people from the Attorney General’s Office and from the Office of Professional Regulation as they participated in drafting the Contractor Registry bill and then worked together as this bill moved through the legislative process. HBRA was committed in making sure the requirements included in this Registry bill were limited and didn’t expand in scope through legislative amendments. We were very successful in this effort and, given the fact the bill didn’t pass in the last days of the session, we will be back to this work in January.

Paid Family Leave – H.107

Bill Status:  House and Senate failed to come to an agreement and move this bill. It will be reconsidered in January.

HBRA Legislative Activity:  HBRA board members testified regarding the problems an expansive paid family leave bill would impose on the contracting industry. Workforce shortages remain one of our biggest challenges and this bill would exacerbate that struggle.  The original bill, with expansive benefits, was pared down in the last few weeks of the session. This is a top priority for the democrats so will most assuredly pass in some form next year. The challenge for the legislative majority is bringing a bill that the Governor will sign or getting enough of their members to override a veto.

Bill Description:

Funding:

· 0.2% payroll tax split evenly employer / employee

Benefit:

· 12 weeks for a new child

· 6 weeks to care for a family member

Salary Example: $1000 / week salary

· Portion of salary at or below 55% of VT avg weekly salary = $477.38

· Portion of salary above 55% of VT avg weekly salary = $258.27

· Total benefit = $735.65

Note in timing / rollout:

·     if the Commissioner is able to identify an insurance carrier that can provide the required benefits in a more cost-effective manner than would be possible if benefits were provided by the State, the Commissioner shall enter into a contract with that insurance carrier to administer the Program and provide the benefits required by this act beginning in October of 2020; and

·     if the Commissioner is unable to identify a suitable insurance carrier, the Program shall be administered by the Department of Labor in coordination with the Departments of Financial Regulation and of Taxes, and benefits shall become available beginning in July of 2021.

Employee Misclassification – S.108

Bill Status:  This bill is in a Committee of Conference where the House and Senate each appoint three members and they negotiate a compromise. Failing that the bill dies. They did not come to an agreement by adjournment but should reconvene the committee in January.

HBRA Legislative Activity:  Our lobbying team successfully worked with legislators to provide compromise language limiting the scope of this bill. Our team will pick up where they left off and continue to work with our allies to limit the burdens this bill could add to our employers.

Bill Description:  This bill would permit the Attorney General to enforce complaints of employee misclassification under the workers’ compensation and unemployment insurance laws. The Department of Labor currently does this work, and this would allow a dual process which is a concern for employers. The House Commerce Committee worked to address concerns raised by Home Builders and Remodelers Association along with other associations. They made changes to the language clarifying that the Department of Labor would only refer cases to the Attorney General’s Office in specific cases of repeat or large number of misclassifiers.

Hydrofluorocarbon Ban – S.30

Bill Status: The Governor signed this bill and it became law on July 1, 2019.  

HBRA Legislative Activity: The President of HBRA provided compelling testimony to House Natural Resources as to the problems an early enactment date, limiting the sale in Vermont of many insulation products, would cause for contractors. While the committee thought his testimony was impressive, they dismissed HBRA’s concerns. Our lobbying team worked with the committee members individually to drive home the points made by Jim Bradley. In a last-minute push, we were able to get the bill returned to committee in order for them to delay the implementation date. Our team then had to work with Senators to make sure they finally agreed with this change. We were able to claim success and the effective date for selling product in Vermont has been moved to January, 2021 so we can be assured that manufacturers will be able to ramp up production to meet demand.

Bill Description:  This bill originally proposed to regulate the use of hydrofluorocarbons (HFCs) and includes a section that proposes to ban rigid polyurethane applications and spray foam, flexible polyurethane, integral skin polyurethane, flexible polyurethane foam, polystyrene extruded sheet, polyolefin, phenolic insulation board and bunstock.

Building Enforcement Working Groups and Weatherization - H.63

Bill Status:  The Governor signed this bill and it became law in July 1, 2019.

HBRA Legislative Activity: Jim Bradley testified to the Senate Natural Resources Committee on an earlier version of the bill (S.171).  HBRA testimony focused on RBES and the fact that the current law of the land is not enforced thus creating disparities in building energy efficiency. He encouraged the committee to consider enforcement of RBES as part of the work of two proposed building energy labeling groups – a residential group and a commercial group.  Homebuilders and our lobbyists also worked with House and Senate members to propose an RBES enforcement group, or for RBES enforcement to be part of the charge of the building energy labelling groups. Our lobbyists will now work with the Public Service Department’s Commissioner to ensure that Homebuilders is named to the membership of both of those working groups.

Bill Description:  What began as a small change to the bottle bill (H.63) grew into an expansive effort that included a long-time initiative of Sen Chris Bray’s to move forward on building energy labeling and benchmarking.

The bill channels several funding sources towards increased weatherization. It allows for the use of Efficiency VT carryforward balances to be used for moderate income (defined as 80% to 120% of area median income) weatherization efforts to the tune of $4M for 2019 and 2020.  $350K additional came from the General Fund towards Efficiency VT.  Additional funding may also come from VLITE dividends.

The bill orders the PUC to open a docket exploring the creation of an all‑fuels energy efficiency program with a preliminary report due in January 2020.  Finally the bill authorizes the Treasurer to use up to $5M of credit facility for accelerated weatherization program - loans to nonprofit groups, not individuals – until 2021.

Act 250

The legislature established a formal committee to spend two years traveling the state, hearing from stakeholders and recommending updates to Act 250. This past January the House Natural Committee took up the work of the Act 250 Commission: The Next 50 Years. Our lobbying team joined a packed room every day for the first few months of the session as interested parties anticipated a lot of action. As it turned out the issues were so vast that the committee members struggled to make headway. In the end no action was taken with regard to Act 250. Given the time spent on this topic we anticipate the committee opening this subject up again in January. Prior to the start of the session our lobbyists will be working with people from the Governor’s administration and key committee members to see if we can get some changes made that can positively impact the home building industry.

DRM | Downs Rachlin Martin PLLC

Governor, Legislative Leaders in Uneasy Truce as Session Approaches 

Two years ago, Gov. Phil Scott and legislative leaders ended the session locked in battle over state spending. Last year’s session ended with Democratic leaders warring among themselves over minimum wage and paid family leave. As lawmakers enter the second year of the biennial session, leaders in both parties and both branches are showing more interest in compromise and less desire for conflict than at any time since Gov. Scott’s election in 2016.
 
One sign of truce is the quiet that has pervaded Montpelier since June. There have been virtually no press conferences or political jousting between or among the parties. House Speaker Mitzi Johnson and Sen. President Tim Ashe appear to have buried the hatchet; at a joint press conference on Thursday they made clear they had patched up their very public disagreement from last spring. Surprisingly, they took no shots at Gov. Scott as they matter-of-factly described the several bills that he is certain to veto.
 
Similarly, Scott has generally avoided calling out his many disagreements with the Democratic legislature in his periodic press conferences. Everyone seems willing to resolve their disputes relatively amicably and move on.
 
One of the first disagreements to resurface will be S.37, a bill Scott vetoed last spring that would create a new cause of action for individuals who have been exposed to toxic chemicals and claim they may suffer future harm. At yesterday’s press conference, Ashe seemed open to a compromise with the governor. There is a bit of game theory involved, as neither side has an interest in negotiating if they know they can prevail in an override vote in January. Moderate Democrats who opposed the bill in May know the leverage they now hold as both sides seek to firm up their votes.
 
On both of the highly contested issues of paid family leave (H.107) and minimum wage (S.23), the House appears to have acceded to the Senate. But a gubernatorial veto has been promised, and overrides are unlikely. 
 
Prior acrimony over the minimum wage bill may have faded as a result of Vermont’s strengthening job market, which has given workers more leverage to bargain for higher wages. The state’s unemployment rate of 2.2 percent is the lowest in the country.
 
The flip side of the low unemployment rate is the scarcity of new workers available to employers. The shortage of workers is a certain contributor to the state’s sluggish job growth, which is far below the national average. Political leaders seem to recognize that Vermont’s employers are more concerned about finding workers than they are about having to pay them more than $10.78 per hour.
 
Democrats and Republicans would surely find common ground if either party could devise a workable plan to attract or retain more young workers.
 
Several other previously-divisive issues seem amenable to compromise in 2020:
 

•	Budget. The state’s three major funds – the general fund, transportation fund and education fund – are all on track to meet projections. There will still be significant pressures for new spending, but no areas of major disagreement have yet surfaced.
•	Act 250 Reform. This issue been a thorny source of conflict between the business community and environmentalists for years. But administration staff members are optimistic that they may reach an agreement on reforms that have eluded the legislature for decades.
•	Gun Violence Prevention. Ashe and Johnson said that they hope to find areas of agreement with the governor
•	Marijuana. Johnson and Scott are already in general agreement on this issue, so it seems unlikely to become a partisan debate.

 

•	Housing. Perhaps no issue in Vermont has greater consensus than the need for more housing. Senate Democrats want to use more state bonding to fund housing development, but fellow Democrat Beth Pearce remains their biggest obstacle.
•	Economic Development. Legislative and administration leaders have worked cooperatively over the past month on a variety of measures to promote economic development.

The pre-session sense of calm and cooperation will no doubt change as new issues and priorities arise. But as partisan acrimony rips Congress apart, the civility of debate in Vermont looks more and more like a quaint throwback to a bygone era.

Paid Family Leave

A bill to require paid family leave, H.107, was left on the legislative calendar upon adjournment last May, a result of a stalemate between House and Senate leadership. 

Read more

Minimum Wage

As with the paid family leave bill, S.23 sits on the legislative action calendar. Legislators anticipate the bill will pass the General Assembly, but anticipate that it will be vetoed. 

Read more

Global Warming Solutions Act 

The issue of climate change is almost certain to receive heightened attention in the upcoming session. In the House, the focus will be the Global Warming Solutions Act (H.462), which is modeled after legislation that was approved in Massachusetts. 

Read more

Three-acre Rule

In 2015, the legislature approved a requirement that all properties that are three acres or larger obtain a stormwater permit. 

Read more

Builder Contractor Registry

A bill that creates a new registration for home builders was expected to pass fairly quickly last session, but hit a number of speed bumps. 

Read more

Independent Contractors

A recently-passed California law that greatly restricts the ability of employers to classify workers as independent contractors could revive a decades-long debate over how such workers are classified in Vermont.

Read more

DRM | Down Rachlin Martin PLLC - November 21, 2019  

Strict Liability/Medical Monitoring Bill – S.37

 Bill Status: Delivered to the Governor’s desk on 6/11 and he vetoed the bill. People anticipate the Legislature will attempt to override this veto when they return in January.

 HBRA Legislative Activity:  Without the work of members of Home Builders and Remodelers working with HBRA’s lobbying team this bill would not have protections that clearly exempt our industry from liability for medical monitoring damages due to toxic substance exposure. House Judiciary Committee members made it clear that they took our concerns into consideration when redrafting this Senate bill. Our lobbyists worked with members of the Senate to ensure their acceptance of these changes and HBRA was able to prevail through all stages of this bill’s passage in the House and Senate.

 Bill Description:  The bill proposes to establish a private right of action for medical monitoring damages incurred due to exposure to a toxic substance. It would affect companies with 10 or more employees.

Contractor Registry Bill – S.163

 Bill Status:  Passed the Senate and is on the House calendar for action in January. 

 HBRA Legislative Activity:  Our lobbying team worked collaboratively with people from the Attorney General’s Office and from the Office of Professional Regulation as they participated in drafting the Contractor Registry bill and then worked together as this bill moved through the legislative process. HBRA was committed in making sure the requirements included in this Registry bill were limited and didn’t expand in scope through legislative amendments. We were very successful in this effort and, given the fact the bill didn’t pass in the last days of the session, we will be back to this work in January.

 Paid Family Leave – H.107

 Bill Status:  House and Senate failed to come to an agreement and move this bill. It will be reconsidered in January.

 HBRA Legislative Activity:  HBRA board members testified regarding the problems an expansive paid family leave bill would impose on the contracting industry. Workforce shortages remain one of our biggest challenges and this bill would exacerbate that struggle.  The original bill, with expansive benefits, was pared down in the last few weeks of the session. This is a top priority for the democrats so will most assuredly pass in some form next year. The challenge for the legislative majority is bringing a bill that the Governor will sign or getting enough of their members to override a veto.

 Bill Description:

 Funding:

· 0.2% payroll tax split evenly employer / employee

Benefit:

· 12 weeks for a new child

· 6 weeks to care for a family member

Salary Example: $1000 / week salary

· Portion of salary at or below 55% of VT avg weekly salary = $477.38

· Portion of salary above 55% of VT avg weekly salary = $258.27

· Total benefit = $735.65

Note in timing / rollout:

·     if the Commissioner is able to identify an insurance carrier that can provide the required benefits in a more cost-effective manner than would be possible if benefits were provided by the State, the Commissioner shall enter into a contract with that insurance carrier to administer the Program and provide the benefits required by this act beginning in October of 2020; and

·     if the Commissioner is unable to identify a suitable insurance carrier, the Program shall be administered by the Department of Labor in coordination with the Departments of Financial Regulation and of Taxes, and benefits shall become available beginning in July of 2021.

 

Employee Misclassification – S.108

 

Bill Status:  This bill is in a Committee of Conference where the House and Senate each appoint three members and they negotiate a compromise. Failing that the bill dies. They did not come to an agreement by adjournment but should reconvene the committee in January.

 HBRA Legislative Activity:  Our lobbying team successfully worked with legislators to provide compromise language limiting the scope of this bill. Our team will pick up where they left off and continue to work with our allies to limit the burdens this bill could add to our employers.

 Bill Description:  This bill would permit the Attorney General to enforce complaints of employee misclassification under the workers’ compensation and unemployment insurance laws. The Department of Labor currently does this work, and this would allow a dual process which is a concern for employers. The House Commerce Committee worked to address concerns raised by Home Builders and Remodelers Association along with other associations. They made changes to the language clarifying that the Department of Labor would only refer cases to the Attorney General’s Office in specific cases of repeat or large number of misclassifiers.

 Hydrofluorocarbon Ban – S.30

 Bill Status: The Governor signed this bill and it became law on July 1, 2019.  

 HBRA Legislative Activity: The President of HBRA provided compelling testimony to House Natural Resources as to the problems an early enactment date, limiting the sale in Vermont of many insulation products, would cause for contractors. While the committee thought his testimony was impressive, they dismissed HBRA’s concerns. Our lobbying team worked with the committee members individually to drive home the points made by Jim Bradley. In a last-minute push, we were able to get the bill returned to committee in order for them to delay the implementation date. Our team then had to work with Senators to make sure they finally agreed with this change. We were able to claim success and the effective date for selling product in Vermont has been moved to January, 2021 so we can be assured that manufacturers will be able to ramp up production to meet demand.

  Bill Description:  This bill originally proposed to regulate the use of hydrofluorocarbons (HFCs) and includes a section that proposes to ban rigid polyurethane applications and spray foam, flexible polyurethane, integral skin polyurethane, flexible polyurethane foam, polystyrene extruded sheet, polyolefin, phenolic insulation board and bunstock.

 Building Enforcement Working Groups and Weatherization - H.63

 Bill Status:  The Governor signed this bill and it became law in July 1, 2019.

 HBRA Legislative Activity: Jim Bradley testified to the Senate Natural Resources Committee on an earlier version of the bill (S.171).  HBRA testimony focused on RBES and the fact that the current law of the land is not enforced thus creating disparities in building energy efficiency. He encouraged the committee to consider enforcement of RBES as part of the work of two proposed building energy labeling groups – a residential group and a commercial group.  Homebuilders and our lobbyists also worked with House and Senate members to propose an RBES enforcement group, or for RBES enforcement to be part of the charge of the building energy labelling groups. Our lobbyists will now work with the Public Service Department’s Commissioner to ensure that Homebuilders is named to the membership of both of those working groups.

 Bill Description:  What began as a small change to the bottle bill (H.63) grew into an expansive effort that included a long-time initiative of Sen Chris Bray’s to move forward on building energy labeling and benchmarking.

 The bill channels several funding sources towards increased weatherization. It allows for the use of Efficiency VT carryforward balances to be used for moderate income (defined as 80% to 120% of area median income) weatherization efforts to the tune of $4M for 2019 and 2020.  $350K additional came from the General Fund towards Efficiency VT.  Additional funding may also come from VLITE dividends.

 The bill orders the PUC to open a docket exploring the creation of an all‑fuels energy efficiency program with a preliminary report due in January 2020.  Finally the bill authorizes the Treasurer to use up to $5M of credit facility for accelerated weatherization program - loans to nonprofit groups, not individuals – until 2021.

 Act 250

 The legislature established a formal committee to spend two years traveling the state, hearing from stakeholders and recommending updates to Act 250. This past January the House Natural Committee took up the work of the Act 250 Commission: The Next 50 Years. Our lobbying team joined a packed room every day for the first few months of the session as interested parties anticipated a lot of action. As it turned out the issues were so vast that the committee members struggled to make headway. In the end no action was taken with regard to Act 250. Given the time spent on this topic we anticipate the committee opening this subject up again in January. Prior to the start of the session our lobbyists will be working with people from the Governor’s administration and key committee members to see if we can get some changes made that can positively impact the home building industry.

End of Session Wrap Up

Many said that Friday’s "adjournment" was the most unusual in at least 40 years. The fighting between the House and Senate was great theater but not sound legislating. The Senate refused to accept the House's joint adjournment resolution and are expecting the House to come back next Wednesday. Meanwhile the House members gave their speeches, said their goodbyes, packed up their files and left for the year.  It was a sight to behold.

It took an extra week to adjourn.  The legislature is scheduled for eighteen weeks, and last week was number 19.  The biggest blockades to wrapping thing up were differences between the House and Senate on their marquee economic development initiatives –paid family leave for the House and minimum wage increases for the Senate.  Meanwhile, other widely considered initiatives were left by the wayside –likely to be picked up again next session.

Efforts to establish a system to tax and regulate recreational marijuana ran out of time – and political will.  The two bodies agreed on sustainable funding for Lake Champlain clean up.  Efforts to levy a “cloud tax”, i.e. impose sales tax on software accessed via the Internet, and another proposal to increase the rooms and meals tax by 1% faced stiff opposition from stakeholder groups. Instead the revenue committees agreed on funding for clean water that did not raise new money.  They diverted a percentage of rooms and meals tax to water cleanup and will back fill the General Fund with additional revenues generated somewhat unexpectedly this year. 

Contractor Registry Bill – S.163 (Page 2941)

Bill Status – This bill sat on the House action calendar in the last few days and, even if had been up for a vote, time would have run out before it could be approved by the Senate. There were also rumors that the Governor wasn’t supportive and might veto the bill. Work will be done prior to next session to garner his support and the support of others in the House in the hopes that this bill can move quickly in January.

Bill Description - The major changes made in Ways and Means include:

·         $50.00 instead of $75.00 for individual fees every two years.

·         Trigger for a required contract was changed to $5,000.00 instead of $2,500.00. Trigger for registration stays at $2,500.00.

·         OPR can begin taking registrations on December 1, 2019. The registration term will begin April 1, 2020. Pushes back the date for "unauthorized practice" (ie. the date when penalties begin for operating without being registered) by a year to April 1, 2021 which allows more time to get the word out.

·         New language that provides more definition to “residential construction work.”

Strict Liability/Medical Monitoring Bill – S.37 (Page 3046)

Bill Status – The Senate concurred with the House’s changes and voted the bill on a vote of 29-11. There are enough votes to sustain a veto should the Governor decide this bill goes too far. We were successful in mitigating contractors’ risk, but manufacturers are still affected which could impact procurement of materials.

Bill Description - The bill proposes to establish a private right of action for medical monitoring damages incurred due to exposure to a toxic substance. It would affect companies with 10 or more employees. There is also language added by the Governor’s administration that narrows the scope of the strict liability section that was passed by the Senate.

Paid Family Leave – H.107

Bill Status – This bill failed to pass this year as it fell victim to the epic conflict between the House and Senate.  It will no doubt be taken up early next session.

Bill Description - As the bill stands now (there will be changes made prior to passage):

Funding:

·  0.2% payroll tax split evenly employer / employee

Benefit:

·  12 weeks for a new child

·  6 weeks to care for a family member

Salary Example: $1000 / week salary

·  Portion of salary at or below 55% of VT avg weekly salary = $477.38

·  Portion of salary above 55% of VT avg weekly salary = $258.27

·  Total benefit = $735.65

Note in timing / rollout:

·      if the Commissioner is able to identify an insurance carrier that can provide the required benefits in a more cost-effective manner than would be possible if benefits were provided by the State, the Commissioner shall enter into a contract with that insurance carrier to administer the Program and provide the benefits required by this act beginning in October of 2020; and

·      if the Commissioner is unable to identify a suitable insurance carrier, the Program shall be administered by the Department of Labor in coordination with the Departments of Financial Regulation and of Taxes, and benefits shall become available beginning in July of 2021.

Employee Misclassification – S.108

Bill Status – S.108 was still in a Committee of Conference when the House adjourned on Friday. At their last meeting it was clear that the Senate didn’t like the House changes that we had supported. This committee will reconvene in January.

Bill Description - This bill would permit the Attorney General to enforce complaints of employee misclassification under the workers’ compensation and unemployment insurance laws. The Department of Labor currently does this work, and this would allow a dual process which is a concern for employers. The House Commerce Committee worked to address concerns raised by Home Builders and Remodelers Association along with other associations. They made changes to the language clarifying that the Department of Labor would only refer cases to the Attorney General’s Office in specific cases of repeat or large number of misclassifiers.

Hydrofluorocarbon Ban – S.30 (Page 2, 4(A) and (B))

Bill Status – S.30 passed the Senate and is on its way to the Governor’s desk for his signature. We were able to keep the language the House put in for us which pushed back the effective date for selling product in VT to 1/21. There was an effort by some special interest groups to encourage Senate Natural Resources to ignore our request but we prevailed with the help of AGC.

Bill Description - This bill originally proposed to regulate the use of hydrofluorocarbons (HFCs) and includes a section that proposes to ban rigid polyurethane applications and spray foam, flexible polyurethane, integral skin polyurethane, flexible polyurethane foam, polystyrene extruded sheet, polyolefin, phenolic insulation board and bunstock.

Association Health Plans – H.524

Bill Status - Language passed on Wednesday that is expected to be signed by Governor, that will enable these plans to continue for existing members as long as federal law allows.

Bill Description - Relevant Section of larger bill:

Sec. 7. 8 V.S.A. § 4079a is amended to read:

§ 4079a. ASSOCIATION HEALTH PLANS * * *

(d)(1) An association health plan that provided coverage for the 2019 plan year may be renewed for coverage of existing association employer members for subsequent plan years, to the extent permitted under federal law. An association health plan that provided coverage for the 2019 plan year shall not enroll any new employer members for coverage after the 2019 plan year; provided, however, that new employees of existing association employer members may enroll in the plan in a subsequent plan year pursuant to an offer of coverage from their employer.

(2) No new association health plans shall be offered or issued for coverage in this State for plan years 2020 and after.

Note: All of the details regarding these bills are subject to change. Nothing is final until the legislature adjourns, which should be next week.

Contractor Registry Bill – S.163 (Page 2941)

Bill Status – This bill just passed out of Ways and Means with their proposed amendment on a vote of 6-5 and should be on the House floor for a vote early next week. Given that the legislative session is most likely down to a couple more days it doesn’t look like this bill will pass this year. If there are any snags in other bills, extending adjournment by a few extra days, we could still get this over the finish line. If not, it will be up for action when the next session convenes in January.

Bill Description - The major changes made in Ways and Means include:

·         $50.00 instead of $75.00 for individual fees every two years.

·         Trigger for a required contract was changed to $5,000.00 instead of $2,500.00. Trigger for registration stays at $2,500.00.

·         OPR can begin taking registrations on December 1, 2019. The registration term will begin April 1, 2020. Pushes back the date for "unauthorized practice" (ie. the date when penalties begin for operating without being registered) by a year to April 1, 2021 which allows more time to get the word out.

·         New language that provides more definition to “residential construction work.”.  

Strict Liability/Medical Monitoring Bill – S.37 (Page 3046)

Bill Status - The bill is on the Senate Calendar and we will be monitoring this closely. The Senate could vote to concur with the changes the House made, or they could call for a Committee of Conference. Calling for this committee would take more time so again, facing the last week of the session, it would appear that their wisest move would be to concur with the House.

Bill Description - The bill proposes to establish a private right of action for medical monitoring damages incurred due to exposure to a toxic substance. It would affect companies with 10 or more employees. There is also language added by the Governor’s administration that narrows the scope of the strict liability section that was passed by the Senate.

The House Judiciary Committee took our concerns seriously and added language to this bill that would mitigate contractor liability.

Paid Family Leave – H.107

Bill Status – The House and Senate are working behind the scenes to try to come to consensus. Influential Senate leaders voted are opposed to this bill. Jane Kitchel (Democrat- Caledonia, Chair of Senate Appropriations) has publicly stated that she believes we need to make sure there is enough money for needed existing programs and would rather put any extra resources into minimum wage increases. There are also enough votes against this new program to successfully sustain the Governor’s veto should he take that step.

Bill Description - As the bill stands now (there will be changes made prior to passage):

Funding:

·  0.2% payroll tax split evenly employer / employee

Benefit:

·  12 weeks for a new child

·  6 weeks to care for a family member

Salary Example: $1000 / week salary

·  Portion of salary at or below 55% of VT avg weekly salary = $477.38

·  Portion of salary above 55% of VT avg weekly salary = $258.27

·  Total benefit = $735.65

Note in timing / rollout:

·      if the Commissioner is able to identify an insurance carrier that can provide the required benefits in a more cost-effective manner than would be possible if benefits were provided by the State, the Commissioner shall enter into a contract with that insurance carrier to administer the Program and provide the benefits required by this act beginning in October of 2020; and

·      if the Commissioner is unable to identify a suitable insurance carrier, the Program shall be administered by the Department of Labor in coordination with the Departments of Financial Regulation and of Taxes, and benefits shall become available beginning in July of 2021.

Employee Misclassification – S.108

Bill Status – S.108 is in a Committee of Conference and the House and Senate conferees will be meeting on Tuesday.  

Bill Description - This bill would permit the Attorney General to enforce complaints of employee misclassification under the workers’ compensation and unemployment insurance laws. The Department of Labor currently does this work, and this would allow a dual process which is a concern for employers. The House Commerce Committee worked to address concerns raised by Home Builders and Remodelers Association along with other associations. They made changes to the language clarifying that the Department of Labor would only refer cases to the Attorney General’s Office in specific cases of repeat or large number of misclassifiers.

Hydrofluorocarbon Ban – S.30 (Page 2, 4(A) and (B))

Bill Status – Jim Bradley and Byron Gokey testified as to the positive attributes of the replacement products but the problem in the timeframe for banning sale of HFC insulation products (1/1/20). Through a number of machinations, we were able to get the date pushed back to 1/1/21. We garnered support from the advocates pushing for the original dates and feel that, should there be a problem in procuring the needed material next year we can revisit this effective date again.

Bill Description - This bill originally proposed to regulate the use of hydrofluorocarbons (HFCs) and includes a section that proposes to ban rigid polyurethane applications and spray foam, flexible polyurethane, integral skin polyurethane, flexible polyurethane foam, polystyrene extruded sheet, polyolefin, phenolic insulation board and bunstock.

Note: All of the details regarding these bills are subject to change. Nothing is final until the bang of the gavel at adjournment, which should be within the next 10 days – or so...

Contractor Registry Bill - S.163

This bill requires contractors to register with the Office of Professional Regulation prior to contracting with a homeowner to perform construction, remodeling, or home improvement work on a dwelling used primarily for residential purposes, in exchange for consideration of more than $2,500.00, including labor and materials.

Requirements to Register:

• ·        Contractor must be in compliance with State laws respecting child support, taxes, judgment orders, and workers’ compensation.
• ·        The contractor must have proof of professional liability insurance in the amount of $300,000.00 per claim and $1,000,000.00 in the aggregate.
• ·        Contractor must execute a written contract with client prior commencing residential construction work.

Registration Cost (every two years):

• ·        Individual: $75.00
• ·        Business Organization: $250.00

Bill Status –S.163 passed the Senate and is in the House Commerce and Economic Development Committee. It has two more stops, Ways and Means and Appropriations, and then requires approval by the full House before it moves back to the Senate to review the changes made by House Committees. The legislative session is drawing to a close so passage this year is uncertain.

Strict Liability/Medical Monitoring Bill – S.37

This bill, as passed the Senate, proposes to hold any person who releases a toxic substance strictly, jointly, and severally liable for any harm resulting from the release. The bill also proposes to establish a private right of action for medical monitoring damages incurred due to exposure to a toxic substance. It would affect companies with 10 or more employees.

Bill Status – S.37 was just voted out of House Judiciary on Friday. They removed the strict liability section that was of great concern but the Governor’s Administration proposed a new amendment pertaining to strict liability that would affect product manufacturers which was accepted. The committee considered concerns raised by Home Builders and added protective language for us. Large facilities would be affected in this new bill so the committee included a further definition of “Large Facility” where an activity within a Standard Industrial Classification code of 10 through 14, 20 through 39, 40 through 42, 44 through 46, or 49 is conducted or was conducted. This bill still has to go back to the Senate so there is no assurance this new definition will go into law. There is a lot more work to be done.

Paid Family Leave – H.107

As the bill stands now (there will be changes made prior to passage): 

Funding:

·  0.2% payroll tax split evenly employer / employee

Benefit:

·  12 weeks for a new child

·  6 weeks to care for a family member

Salary Example: $1000 / week salary

·  Portion of salary at or below 55% of VT avg weekly salary = $477.38

·  Portion of salary above 55% of VT avg weekly salary = $258.27

·  Total benefit = $735.65

Note in timing / rollout:

·      if the Commissioner is able to identify an insurance carrier that can provide the required benefits in a more cost-effective manner than would be possible if benefits were provided by the State, the Commissioner shall enter into a contract with that insurance carrier to administer the Program and provide the benefits required by this act beginning in October of 2020; and

·      if the Commissioner is unable to identify a suitable insurance carrier, the Program shall be administered by the Department of Labor in coordination with the Departments of Financial Regulation and of Taxes, and benefits shall become available beginning in July of 2021.

Bill Status – H.107 will most assuredly be headed for a conference committee between the House (passed their version with more liberal benefits and a 0.55% payroll tax) and this Senate version.

Employee Misclassification – S.108

This bill would permit the Attorney General to enforce complaints of employee misclassification under the workers’ compensation and unemployment insurance laws. The Department of Labor currently does this work, and this would allow a dual process which is a concern for employers.

Bill Status – S.108 passed the Senate and has also been approved by House Commerce. The Commerce Committee worked to address concerns raised by Home Builders and Remodelers Association along with other associations. They made changes to the language clarifying that the Department of Labor would only refer cases to the Attorney General’s Office in specific cases of repeat misclassifiers. This bill still needs to go back to the Senate and may have to go to a conference committee.

Residential Building Energy Labeling Working Group – H.63

In a last-minute move, language was added to an unrelated bill which would establish a Residential Building Energy Labeling Working Group. This group would meet and determine the best way to establish a statewide voluntary program for rating and labeling the energy performance of buildings to make energy use and costs visible for buyers, sellers, owners, lenders, appraisers, and real estate professionals.

Bill Status – H.63 has to be voted on by the entire Senate early next week, then will go to a House committee. We will try to get language in there for RBES enforcement to be added and will work to get Home Builders and Remodelers Association representation appointed to this group.

Hydrofluorocarbon Ban – S.30

This bill originally proposed to regulate the use of hydrofluorocarbons (HFCs). This bill now includes a section that proposes to ban rigid polyurethane applications and spray foam, flexible polyurethane, integral skin polyurethane, flexible polyurethane foam, polystyrene extruded sheet, polyolefin, phenolic insulation board and bunstock.

Bill Status – This bill is in House Natural Resources and Byron Gokey will be testifying on Monday on behalf of AGC to raise concerns shared by HBRA. We have meetings set up this week with weatherization advocates and will also alert legislators as to the problems with this language.

The Legislature is in the home stretch. It is anticipated that the legislative session should be ending around May 18^th and Senate Committees are beginning to shut down as they focus on conference committees and finishing up their work for the year. There are still bills in play that affect Home Builders and we are following these closely as things can move quickly during these last few weeks.

Contractor Registry Bill

S.163 – The House General and Military Affairs Committee has been taking a lot of testimony on this bill. Jim Bradley testified in support on Thursday morning. The committee is still considering a few changes to the Senate version, particularly around the dollar level that would determine when a contractor needs to register. Most of the testimony is supportive of the contractor registry and it is anticipated the bill should pass out of committee later next week..

The Toxins Bill – aka – Strict Liability/Medical Monitoring Bill

The committee stripped strict liability from the bill and it now focuses on medical monitoring. Updated language can be found here S.37.  This language is still a concern as it leaves contractors vulnerable to lawsuits and increased insurance costs. We are still trying to get an exemption for construction materials but haven’t received a lot of support in the committee. A number of insurance industry people have testified with their concerns to the committee but haven’t been able to sway the members either. We’ll continue our work next week with key legislators. 

Paid Family Leave

The Senate Economic Development Committee is continuing to take testimony on this bill. The latest version can be found here S.107.  The committee is trying to pare down the benefits to lower the payroll tax to a 0.2%, split between the employee and employer. More details will be hammered out next week.

The Senate Economic Development Committee is continuing to take testimony on this bill. The latest version can be found here H.107. The committee is trying to pare down the benefits to lower the payroll tax to 0.2% (down from the House version which is 0.55%) split between the employee and employer. More details will be hammered out next week.

Employee Misclassification

Testimony continued last week regarding S.108 which proposes a new process for enabling the AG’s office to investigate cases of alleged employee misclassification. The amended language can be found here. The committee received strong testimony from Diane Bothfeld, Director of Administrative Services, Agency of Agriculture, Food and Markets. She plainly laid out for the House Committee on Commerce and Economic Development how misclassification claims work, defending the current process for the Department of Labor. When asked, “shouldn’t the AG’s office have a role in investigating and prosecuting claims,” her answer was, “absolutely not”. We hope the committee has taken this week’s testimony seriously and realizes there isn’t a need for additional oversight. We’ll be meeting with legislative committee members next week to get their latest feedback.

In other news:

State Still Making Clean Water a Priority

https://vtdigger.org/2019/05/03/pay-clean-water-lawmakers-look-ed-fund/ 

Water Testing for PFAS

https://vtdigger.org/2019/04/15/qa-cassie-polhemus-ceo-veda/

Contractor Registry Bill

S.163 –House General and Military Affairs will take up the Contractor Registry sections of S.163 on Wednesday and Thursday.

Wednesday the committee will hear from:

Chris Curtis, Attorney General’s office

Gabe Gilman and Lauren Hibbert, Office of Professional Regulation

Matt Musgrave, Associated General Contractors

Dennis Wygmans, Addison County State’s Attorney

On Thursday morning:

Jim Bradley, HBRA

Ward Smyth, Turtle Creek Builders

Sandra Vitzthum, Architect

Brad Cook, Building Performance Services.

Dan Clar of Clar Construction has also been invited but not confirmed.

The Toxins Bill – aka – Strict Liability/Medical Monitoring Bill

S.37 – We coordinated a meeting with Paul Zabriskie, Program Director for the Weatherization Program at Capstone and his associate, Cory Boisvert along with Trey Martin, former Secretary of ANR to discuss contractor concerns as they relate to .37. Paul would be the best person to bring this concern before the House Judiciary Committee. He agreed to talk with committee members after our meeting. We also met with key committee members about language that would address our main areas of concern regarding the release of toxins by a “large facility”. We want to ensure that a “large facility” is actually the manufacturer, not the contractor who uses the product.  

Association Health Plans

The Chamber of Commerce has worked diligently by bringing people in to testify in Senate Health and Welfare supporting these plans and highlighting the benefits for employees. The committee is interested in allowing AHPs now in place to continue. If the majority in this committee votes to support the existing plans there will most assuredly be a conference committee where the House and Senate members will have to come to a compromise. There is also a current federal court case which has challenged the viability of Association Health Plans. Here is a U.S. Department of Labor Q&A regarding this court ruling.

Paid Family Leave

H.107 The Senate Economic Development Committee is continuing to take testimony on this bill. Business groups are asking the members to consider a payroll tax opt out for employees who don’t want to avail themselves of this benefit. The committee’s concern is that this will raise the cost of the program for those who want the coverage. The counter point to this; people will be forced to pay into a program that they won’t use which doesn’t seem appropriate. The deliberations will continue next week.

Employee Misclassification

S.108 – Supporters of this bill continue to push for the Attorney General’s office to share the responsibility for investigating complaints of employee misclassification with the Department of Labor (where these cases are currently reviewed). Solid testimony was presented to House Commerce from the Department of Labor highlighting the work they do with regard to complaints made. They strongly made their case that having the Attorney General’s office share the lead is unlike any other arrangements made with other state departments. If there was a difference of opinion between the two there is no way it could be resolved. We followed up with the most ardent committee members who support the bill and believe they are coming to understand the challenges here and are open to some changes that will be supported by HBRA.

In other news:

Minimum wage voted out of committee:

https://vtdigger.org/2019/04/26/house-committee-advances-15-minimum-wage/

Act 250 Legislation Stalled:

https://www.vpr.org/post/acting-act-250-legislation-stalled-vt-lawmakers-take-long-view-development

Contractor Registry Bill

S.163 – This coming week House General and Military Affairs will take up portions of S.163 that don’t pertain to the Contractor Registry. We anticipate the committee will consider this section the week after next.  We met with Chris Curtis from the Attorney General’s office to check in. They would like a builder to consider submitting an Op-ed regarding why there is a need for this registry.

The Toxins Bill

S.37 – The committee was prepared to put aside the strict liability language and focus on medical monitoring. Medical monitoring is still a concern, but it was not as far reaching. On Friday we learned that the Governor’s Administration wants to add their own strict liability language. We met with the Deputy Secretary of the Agency of Natural Resources to discuss the Administration’s perspective. He has met with others who share the Home Builders’ concerns and we will regroup this week. We continue talking with relevant legislators and allied groups regarding unintended consequences of S.37. This work will continue next week. We anticipate needing someone in to testify to this bill the week of 4/29.

Workforce Development Bill

We have prepared draft language to add a comprehensive workgroup for workforce training in the construction trades. This draft has been shared with HBRA board and when it is finalized, we will attempt to find a legislative sponsor and have this added to a bill. There are only about 18 more legislative workdays left so this may not be possible this year. It will be good to have it prepared and added to a bill that will be ready to go when the legislature convenes in January.

Act 250

The committee regrouped and tried to find some aspect of this bill where they could find common agreement in order to gain traction to move forward. That attempt failed and it is all but certain, no bill will be coming from House Natural Resources on Act 250 reform this year.

Paid Family Leave

H.107 The Senate Economic Development Committee is continuing to take testimony on this bill. There continues to be enough Democrats opposed to this bill to support a veto should the Governor decide to make that move. Here is a good article from Rep. Cynthia Browning (D-Arlington) explaining her concerns.

Residential Building Energy Standards

Rep. Scott Campbell has finalized his draft for a working group and is now passing that around to fellow legislators and stakeholders to get support for placing this into a bill that will be passed this year.

Employee Misclassification

S.108 – We met with the Legislative Policy Director for the Department of Labor (DOL) to confirm all that we were told regarding this bill. Right now, the DOL follows up on complaints of misclassification. If there are egregious employers who have repeatedly defied the law, DOL passes the investigation on to the Attorney General. The AG received two cases last year and no one anticipates this will dramatically increase but some felt the referral work done now needs to be codified, hence the consideration of this bill. There is also discussion about requiring a Memorandum of Understand between DOL, the Attorney General and also the Department of Financial Regulation to better parse out the chain of follow-up involved. It was confirmed that there has been no discussion about changing the independent contractor definition.