Vermont Unemployment Law Update 210667 A 2012 VDOL
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Vermont Department of Labor
Legislative and Regulatory
Update
2012
Workers’ Compensation 2012 Update
Legislation that passed:
•Volunteer firefighters §44 of Act 155 (S.106)
•http://www.leg.state.vt.us/DOCS/2012/ACTS/ACT155.PDF
•Sec. 44. 21 V.S.A. § 601 is amended to read:
•§ 601. DEFINITIONS
•Unless the context otherwise requires, words and phrases used in this chapter shall
be construed as follows:
• (12) “Public employment” means the following:
• (K) other municipal workers, including volunteer firefighters and rescue
and ambulance squads while acting in any capacity under the direction and control of
the fire department or rescue and ambulance squads;
• (L) members of any regularly organized private volunteer fire
department while acting any capacity under the direction and control of the fire
department
• (M) members of any regularly organized private volunteer rescue or
ambulance squad while acting any capacity under the direction and control of the
rescue or ambulance squad;
Workers’ Compensation 2012 Update
Legislation that passed:
•Vocational Rehabilitation Clarification: Act 133 (S.136)
•http://www.leg.state.vt.us/DOCS/2012/ACTS/ACT133.PDF
•
•It is hereby enacted by the General Assembly of the State of Vermont:
•Sec. 1. 21 V.S.A. § 641 is amended to read:
•§ 641. VOCATIONAL REHABILITATION
•(a) When as a result of an injury covered by this chapter, an employee is
unable to perform work for which the employee has previous training or
experience, the employee shall be entitled to vocational rehabilitation
services, including retraining and job placement, as may be reasonably
necessary to restore the employee to suitable employment. Vocational
rehabilitation services shall be provided as follows:
• (3) The commissioner shall adopt rules to assure that a worker
who requests services or who has been out of work for more than 90 days
is timely and cost-effectively screened for benefits under this section. The
rules shall:
Workers’ Compensation 2012 Update
Legislation that passed:
•Vocational Rehabilitation Summer Study: Act 133 (S.136) continued
•http://www.leg.state.vt.us/DOCS/2012/ACTS/ACT133.PDF
•Sec. 2. STUDY
•(a) The department of labor in consultation with the department of disabilities, aging, and
independent living and other interested parties including vocational rehabilitation counselors shall
study the following:
• (1) what performance standards should apply to vocational rehabilitation
counselors;
• (2) whether the department of disabilities, aging, and independent living should be
allowed to provide workers’ compensation vocational rehabilitation services and charge the fees
for those services to insurance companies and whether providing services to state employees
would represent a conflict of interest;
• (3) whether injured workers receiving vocational rehabilitation services are
receiving those services in a timely manner; and
• (4) whether the current vocational rehabilitation screening process is effective and
whether entities other than the department of disabilities, aging, and independent living should be
permitted to provide screening to avoid conflicts of interest.
•(b) The department of labor shall report its findings as well as any recommendations by
January 15, 2013, to the house committee on commerce and economic development and the
senate committee on economic development, housing and general affairs
Workers’ Compensation 2012 Update
Legislation that passed:
•Dependent child definition : Act 133 (S.136) continued
•http://www.leg.state.vt.us/DOCS/2012/ACTS/ACT133.PDF
•Sec. 3. 21 V.S.A. § 601 is amended to read:
•§ 601. DEFINITIONS
•Unless the context otherwise requires, words and phrases used in
this chapter shall be construed as follows:
• (2) “Child” includes a stepchild, adopted child, posthumous child,
grandchild, and a child for whom parentage has been established
pursuant to 15 V.S.A. chapter 5, but does not include a married child
unless the child is a dependent.
Workers’ Compensation 2012 Update
And some legislation that didn’t pass but will most likely be back again :
•Sole contractor authorization process –
H.762 unanimously passed House
•http://www.leg.state.vt.us/docs/2012/bills/
House/H-762.pdf
•This bill also had a number of provisions
supported by the department so I expect
some or all of it to be offered again next
session
Workers’ Compensation Enforcement
Priorities: Compliance / Misclassification
•Compliance and proper classification remain a
high priority
•It is likely that the number of Debarments for
non-compliance and misclassification and the
penalties assessed will grow.
•We are working with other state agencies to
identify and pursue violators, including, tax, AHS
and various licensing agencies, including
nursing home licensing, Liquor control, and the
Department of Health
•We are also pursuing a cooperative information
sharing agreement with USDOL.
Workers’ Compensation
Regulatory Agenda
•Medical fee rule – I anticipate starting the
rulemaking process in early August.
Proposed fees will increase in 3 phases to
lessen any immediate rate shock.
•W.C. Rules re-write anticipate starting the
rulemaking process in early September or
October.
Recent Vermont Supreme Court
Decisions on Workers’ Compensation
Law
Hall v. State, 2012 VT 43, 2010-457 June 22, 2012
•This case involves a workers’ compensation retaliation claim against the Agency of
Transportation. The Vermont Supreme Court vacated judgment versus the state and
remanded case to determine whether the retaliation claim was precluded by a
September 2003 Stipulation and Agreement signed by Hall and AOT releasing the
State from liability for any and all claims associated in any way with Hall’s
reclassification and transfer stemming from hostile work environment allegations
against him
•To make out a prima facie case of retaliation for filing a worker’s compensation claim,
a plaintiff must show, among other things, that “he suffered adverse employment
decisions, and ... there was a causal connection between the protected activity and
the adverse employment decision[s].” Murray v. St. Michael’s Coll., 164 Vt. 205, 210,
667 A.2d 294, 299 (1995). In Burlington Northern, the Supreme Court held that a
plaintiff bringing a retaliation claim under Title VII need show only that “a reasonable
employee [in the employee’s situation] would have found the challenged action
materially adverse, ” meaning that it well might have dissuaded a reasonable
employee from engaging in the protected activity. 548 U.S. at 68.
•The Vermont Supreme Court concluded that videotaping a W.C. claimant in
connection with the workers’ compensation claim, cannot, in and of itself, support a
retaliation claim, but may be evidence of a larger pattern of retaliation
Marcum v. State of Vermont Agency of Human Services, 38 A.3d 1177,
2012 VT 3 (Vt. 2012) January 6, 2012
•The issue in this case was whether the Agency of Human Services
was claimant’s “statutory employer” for workers’ compensation
purposes because it paid her, through the Medicaid program, for
nursing services provided to a Medicaid eligible child. The Court
determined that AHS was not the employer.
•Paragraphs 8 – 15 of the decision contain a good discussion of the
“statutory employer” provision and the “nature of the business” test
used in W.C.
Vermont Unemployment
Law Update
2012
Changes to the Unemployment Insurance
Program effective as of July 2012.
•Return of the Waiting Week
•Change in Calculating Partial Benefits
•Imposition of a 15% Fraud Penalty
•No Limitation on Overpayment Offset
•Short-Time Compensation Changes
•Phase-out of the $1,000 Wage “Disregard”
Waiting Week – 21 VSA 1343(a)(4)
•Phased out in 1999, revived as of July 1,
2012.
•Requires all new claimants to file for one
week prior to actually receiving benefits.
•Disqualifications for vacation pay or
WILON can not be served concurrently
with the waiting week.
Change in calculating partial benefits
21 VSA 1338a
•Claimants may earn partial benefits in any week
they work less than 35 hours, but otherwise work
all the hours available to them.
•Intended to encourage part time work while
claimant is seeking full time work.
•As of July 1, 2012, partial benefits will be based
on disregarded earnings of $40.00 or 30% of the
claimant’s weekly wage.
Example of partial benefit
calculation
Claimant works 20 hours for $10 an hour, earning
$200.
Claimant has a weekly benefit amount of $425
30% of $200 = $60 – these are the “disregarded”
earnings
$200 - $60 = $140
Subtract the reduced weekly wage from the weekly
benefit amount to get the partial benefit:
$425 - $140 = $285 Partial Benefit
Enhanced Fraud Penalties
21 VSA 1347(c),(e)
•Overpaid benefits due to intentional
nondisclosure or misrepresentation
subject to an additional 15% penalty.
•NO statute of limitations on the
recovery of overpaid benefits.
Short Time Compensation
21 VSA 1451 et seq.
•The STC program is designed to allow
employers to reduce hours for all or some
of their employees as a means of avoiding
temporary layoffs.
•If the Department approves an STC
program, the employees working reduced
hours will receive a partial STC
unemployment benefit.
New STC Restrictions as of 2012
•Employer cannot owe UI tax.
• Employer cannot be a “negative balance”
employer.
•Employer must notify department of any
layoffs while in STC status
•Workweek reduction must be applied
consistently throughout STC period.
$1,000 wage “disregard” expires July 1, 2012
21 VSA 1325(a)(5)
•Intent of law was to allow employers to
hire employees for brief trial period, and
not suffer tax rate consequences if
employee proved unsuitable.
•There was insufficient feedback from
employers to advocate for extending or
making permanent the exception.
Recent Vermont Supreme Court
Decisions on Unemployment Law
Blue v. Dept of Labor, 2011 VT 84
(when a “leave of absence” does not result in a
return to work, burden is on the employer to show
claimant did not intend to return to her job)
Quote: . . . the court observed that the “existence
and effect of a genuine ‘leave of absence’ is not
dependent upon a ‘guarantee’ by the employer . . .
that the employee may or shall return to work at
the expiration of the leave.”
St. Martin v. Dept of Labor, 2012 VT 8
(a voluntary quit can be “for cause” even when
predicated on a future event, if such event is
both imminent and reasonably forseeable)
Quote: This is not a case in which a claimant has
quit based on a future prediction or speculative
personal reasons; rather, claimant faced the
present reality that she would not be paid for her
work.
Karr v. Dept of Labor, Docket No. 2012-039
(voluntary quit was not for cause when employee
did not attempt to resolve his grievance prior to
quitting)
•Quote: Prior to leaving employment, an employee
has a duty to attempt to resolve any workplace grievance
or demonstrate that such an effort would be unavailing.. .
Claimant worked another month with his coworker and in
that time did not notify his employer of his ongoing
problem with his coworker. Even at the time of his
quitting, claimant fabricated an alternate reason for
leaving his job. Therefore, claimant failed to give his
employer an opportunity to resolve the situation.
