Introduced by Representatives Keenan of St. Albans City and Young of Orwell

BILL AS INTRODUCED H.735

2006 Page 1

H.735

Introduced by Representatives Keenan of St. Albans City and Young of Orwell

Referred to Committee on

Date:

Subject: Labor; Vermont department of labor; workers’ compensation; unemployment compensation; employment practices; workforce development division; employment security board; apprenticeship and advisory councils

Statement of purpose: This bill proposes to amend generally Title 21 to make changes to reflect the new department of labor and to coordinate the various divisions, councils, and boards within the department.

AN ACT RELATING TO STATUTORY REORGANIZATION OF THE BOARDS, COUNCILS, AND DIVISIONS WITHIN THE DEPARTMENT OF LABOR

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 21 V.S.A. § 1 is amended to read:

§ 1. DEPARTMENT CREATED; COMMISSIONER, APPOINTMENT

(a) The department of labor and industry is hereby created to administer the laws relating to labor in chapters chapter 1, subchapters 4 and 5 of chapter 3, and in chapters 5 through 13 17 of this title, and other laws assigned to the department for administration. There shall be within the department the apprenticeship council, the board to award compensation to state employees, the minimum wage boards and other boards, councils, and committees specially assigned to the department.

(b) Biennially, with the advice and consent of the senate, the governor shall appoint a commissioner of labor and industry.

Sec. 2. 21 V.S.A. § 385 is amended to read:

§ 385. ADMINISTRATION

The commissioner has and the commissioner’s authorized representatives have full power and authority for all the following:

(1) To investigate and ascertain the wages of employees in any industry or occupation in the state except as provided in section 383 of this title; 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 the and inspect any place of business or employment of any employer in any such industry or business in the state for the purpose of examining and inspecting any and all books, registers, payrolls and other records of any employer of employees, 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 of any such employees and for the purpose of ascertaining whether the orders of the commissioner have been and are being complied with; 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 in any industry, business or occupation with the exceptions set forth in section 383 of this title; necessary to investigate and enforce the provisions of this chapter.

(4) To recommend and determine the amount of deductions for board, lodging, apparel, or other items or services supplied by the employer or such 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, apparel, or other items or services supplied by the employer, including gratuities, equal to be less than the minimum wage rate set forth in section 384 of this title;.

* * *

Sec. 3. 21 V.S.A. § 601(14)(H) is amended to read:

(H) Any executive officer elected or appointed and empowered in accordance with the bylaws of the corporation shall be an employee of the corporation. With the approval of the commissioner, an officer a corporation or a limited liability company (L.L.C.) may elect not to come under to file exclusions from the provisions of this chapter and if. A corporation or an L.L.C. may elect to exclude up to four executive officers or members from coverage requirements under this chapter. If all officers of the corporation or all managers or members of an L.L.C. make such election, receive approval, and the corporation business has no employees, the corporation or L.L.C. shall not be required to purchase workers’ compensation coverage. If after election, the officer suffers a personal injury and files a claim under this chapter, the employer shall have all the defenses available in a personal injury claim. However, this election shall not prevent any other individual, other than the executive officer individual excluded under this section, found to be an employee of the corporation to recover workers’ compensation from either the corporation, L.L.C., or the statutory employer.

Sec. 4. 21 V.S.A. § 1101 is amended to read:

§ 1101. APPRENTICESHIP DIVISION AND COUNCIL

The apprenticeship division and state apprenticeship council, hereinafter referred to as the “council,” shall be located within the department of employment and training labor. The commissioner of employment and training labor shall supervise the work of the division. The council shall consist of ten 11 members, four five ex officio members and six members who shall be appointed by the governor. Of the ex officio members, one shall be the commissioner of employment and training labor, one shall be the commissioner director of workforce development, one shall be the chief of licensing within the department of public safety, one shall be the director of career and lifelong learning within the department of education, and one shall be the state director of the apprenticeship division who shall act as secretary of the council without vote. Of the appointive members, three shall be persons who on account of previous vocation, employment, occupation, or affiliation can be classed as employers and three shall be persons who on account of previous vocation, employment, occupation, or affiliation can be classed as employees. Appointment of the employer and the employee members shall be made for the term of three years except the employer and employee members first appointed shall be appointed for the term of one, two, and three years respectively. The governor shall annually designate one member of the council as chair. Each member of the council who is not a salaried official or employee of the state shall be entitled to compensation and expenses as provided in 32 V.S.A. § 1010.

Sec. 5. 21 V.S.A. § 1301a is amended to read:

§ 1301a. DEPARTMENT OF EMPLOYMENT AND TRAINING

LABOR; COMPOSITION

The department of employment and training labor, created by section 212 of Title 3, shall consist of a commissioner of employment and training labor, the Vermont employment security board, the Vermont employment service workforce development division, the unemployment compensation division, and the comprehensive employment and training office workers’ compensation and safety division. The chairman chair of the employment security board shall be the commissioner of employment and training labor ex officio. The deputy commissioner of labor may serve as chair as the commissioner’s designee.

Sec. 6. 21 V.S.A. § 1306 is amended to read:

§ 1306. ADVISORY COUNCIL; MEMBERS; TERMS

The governor shall appoint a state labor advisory council of nine members composed of an equal number of employer representatives, of and employee representatives who may fairly be regarded as representative because of their vocations, employment, and affiliations, and of representatives of the general public. Such council shall aid the commissioner in formulating policies and by discussing problems relating to the administration of this chapter chapters 1 through 7 of this title and in assuring impartiality and freedom from political influences in the solution of such problems. Each member of the council who is not a salaried official or employee of the state is entitled to $15.00 for each day of actual service and his necessary expenses incurred in the discharge of his duties compensation and expenses as provided in 32V.S.A. §1010. At the expiration of the initial terms, and successively thereafter, appointments shall be made by the governor for a term of six years in each case. Any appointment to a vacancy shall be for the unexpired term.

Sec. 7. 21 V.S.A. § 1344 is amended to read:

§ 1344. DISQUALIFICATIONS

(a) An individual shall be disqualified for benefits:

(1) For not more than 12 weeks nor less than 6 weeks immediately following the filing of a claim for benefits (in addition to the waiting period) as may be determined by the commissioner according to the circumstances in each case, if the commissioner finds that For any week benefits are claimed until the individual has presented evidence to the satisfaction of the commissioner that he or she has performed subsequent employment services for a bona fide employer and has had subsequent earnings in excess of four times the individual’s weekly benefit amount if the commissioner finds that the individual is unemployed because:

* * *

(2) For any week benefits are claimed, except as provided in subdivision (a)(3) of this section, until he or she has presented evidence to the satisfaction of the commissioner that he or she has performed subsequent services in employment for a bona fide employer and has had subsequent earnings in excess of six times his or her weekly benefit amount if the commissioner finds that such individual is unemployed because:

(A) He or she has left the employ of his or her last employing unit voluntarily without good cause attributable to such employing unit. An individual shall not suffer more than one disqualification by reason of such separation.

(B) He or she has been discharged by his or her last employing unit for gross misconduct connected with his or her work. An individual shall not suffer more than one disqualification by reason of such separation.

(C) He or she has failed, without good cause, either to apply for available, suitable work when so directed by the employment office or the commissioner, or to accept suitable work when offered him, or has during the course of a job interview for available employment made verbal statements which that are either untrue, show an unreasonable lack of interest, or are calculated to preclude an offer of work or a directive being made, or to return to his the individual’s customary self-employment, if any, when so directed by the commissioner. An individual shall not suffer more than one disqualification for these causes.

(D) In determining whether or not any work or employment is suitable for an individual for purposes of this subdivision, the commissioner shall consider the degree of risk involved to his health, safety, and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his the individual’s customary occupation, and the distance of the available work from his the individual’s residence.

* * *

(5) For any week with respect to which he or she is receiving or has received remuneration in the form of:

* * *

(E) A pension (which shall include a governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment) under a plan maintained or contributed to by a base period or chargeable employer. The weekly benefit amount payable to such individual for such week shall be reduced (but not below zero):

* * *

(iii) by no part of the pension if the services performed by the individual during the base period (or remuneration received for such services) for such employer did not affect the individual’s eligibility for, or increase the amount of, such pension, retirement or retired pay, annuity, or similar payment.

Provided that if such remuneration specified in this subdivision, (after applying the provisions of this subdivision) is less than the benefits which that would otherwise be due under this chapter, he the individual shall be entitled to receive for such week, if otherwise eligible, benefits reduced by the amount of such remuneration (after applying the provisions of this subdivision) after rounding such remuneration to the next higher dollar and the provisions of subdivision 1301(9) and sections 1338a and 1339 of this title do not apply.

* * *

(6) For any week with respect to which or a part of which he the individual has received or is seeking to receive unemployment benefits under an unemployment compensation law of another state or of the United States provided that if the appropriate agency of such other state or of the United States finally determines that he the individual is not entitled to such unemployment benefits, this disqualification shall not apply.

(b) In periods of “high level unemployment” an individual shall be disqualified for benefits for not more than twelve nor less than six consecutive weeks immediately following the filing of a claim for benefits, as may be determined by the commissioner according to the circumstances, when it is found that he the individual would otherwise be disqualified under the provisions of subdivision (2)(A) of subsection (a) above of this section, and except that the disqualification provided by this subdivision shall terminate if an individual has performed service in any employment as provided by subdivision (a)(2) of this section.

(c) Notwithstanding any other provision of this chapter, any individual who has been disqualified for regular or extended benefits pursuant to the provisions of subdivision (1) or (3) of subsection (a) shall not be eligible to receive extended benefits with respect to any week of unemployment in his or her eligibility period unless he or she has been employed after the beginning date of such disqualification and has earned in excess of four times his or her weekly benefit amount.