MONTPELIER — Legislation to prevent employers from retaliating against workers who utilize earned time off benefits failed on the Senate floor Tuesday as Democrats split their votes.
In a rare defeat for a bill that makes it to the Senate floor, the body voted 12 to 14 to scuttle it after a late push Tuesday morning from pro-business groups. Democrats, who control the chamber with a veto-proof majority, split their votes — seven in favor and seven opposed.
For Sen. David Zuckerman, P/D-Chittenden, it was a failure of Democratic leadership that led to the bill’s defeat.
“The real question is, in my mind, if Democrats are supportive of workers’ rights, what happened to those seven legislators and why wasn’t there some leadership to make sure they were on board?” he said. “My understanding is usually a bill doesn’t come to the floor unless you think it’s going to pass.”
The Senate agreed to amend the bill, S.133, to clarify its language on a 15 to 11 vote. The language approved states that “an employer, employment agency, or labor organization shall not discharge or penalize an employee because the employee has used, or attempted to use, accrued employer-provided sick leave or other employer-provided benefits.”
The Legislature in recent years has been unable to advance legislation mandating that employers provide earned sick leave. Zuckerman said the legislation defeated Tuesday did not require any employer to provide sick time.
“This bill was not forcing any employer to create any policy. This was simply to say, if, as an employee, you have a sick leave policy then you can’t then retaliate against an employee for utilizing the sick leave policy. Just don’t offer it or don’t retaliate,” he said. “It seemed like a pretty straight-forward bill.”
Sen. Philip Baruth, D-Chittenden, the Senate Majority Leader and a co-sponsor of the bill, said bills routinely make it to the floor when the outcome is not entirely clear.
“There are lots of bill where you don’t have it wired beforehand — you think it’s the right thing to do, there’s some disagreement in your caucus and you use the debate to see what the issues are and what can move forward,” Baruth said. “On this one we knew it was relatively close and we were, I think, plagued by some absences.”
Sens. Claire Ayer, D-Addison, and Dick Sears, D-Bennington, were absent from Tuesday’s floor session. And Senate President Pro Tem John Campbell, D-Windsor, was presiding at the podium with Republican Lt. Gov. Phil Scott absent from the chamber.
Baruth said he was “disappointed in where the Senate ended up” rather than solely with his own caucus. The bipartisan legislation was co-sponsored by Sen. Kevin Mullin, R-Rutland, who serves as chairman of the Economic Development, Housing and General Affairs Committee.
“We had a near-unanimous voice vote on this language last time and obviously a large number of people switched their vote from then to now, even though the bill was less objectionable. We bent over backwards and we removed some language that people had a worry about last year. So, disappointed in the direction of the body as a whole,” he said.
The state’s largest business groups distributed a letter Tuesday morning to members of the Senate urging them to reject the bill. The letter, signed by the Vermont Retail & Grocers Association, Vermont Chamber of Commerce, Associated Industries of Vermont and 12 other organizations, claimed the legislation would increase employers’ exposure to litigation.
“This legislation elevates receipt and use of all these benefits to the kind of protected class status heretofore reserved for race, gender, age or disability,” they wrote. “If enacted, the provision could serve as a disincentive for employers to provide benefits to employees because it would not only preclude the employer from taking disciplinary action when appropriate, but it would also increase the employer’s exposure to future litigation.”
Bennington County Sen. Brian Campion, a Democrat, who voted against the measure, cited some of the very same reasons.
“In part, I feel like it’s bad for employers and employees. I could see some employers stepping back and not giving certain benefits in fear that it might be setting them up for a legal situation,” Campion said.
The legislation stems from allegations that Sodexo, a food service and facility management company, retaliated against some workers who used paid sick time. Campion said he has not heard of other situations in Vermont where similar practices have been alleged.
“I just struggle when legislation is built around one situation, and from what I’ve heard, this really is a [single] situation. I’d be much more interested to dig in broadly if this is happening statewide,” he said.
Because the bill was defeated it cannot be considered again by the Senate during the current biennium. There will be other efforts aimed at protecting workers, though, Baruth said.
“Are we done with trying to protect workers? No. We’re all trying to come out of the Great Recession still and I think part of the thinking was we have to help business, the economy is still fragile, etc,” he said. “I subscribe to that notion very strongly, I would just add to it that all those businesses have workers who are also coming out of the recession and getting fired for using earned sick leave that you were promised, earned and took according to the policy seems to me an unconscionable way to run a business.”
Roll call vote results:
Sen. Tim Ashe, D-Chittenden
Sen. Rebecca Balint, D-Windham
Sen. Philip Baruth, D-Chittenden
Sen. Anne Cummings, D-Washington
Sen. Ginny Lyons, D-Chittenden
Sen. Mark MacDonald, D-Orange
Sen. Dick McCormack, D-Windsor
Sen. Kevin Mullin, R-Rutland
Sen. Anthony Pollina, D-Washington
Sen. Michael Sirotkin, D-Chittenden
Sen. Jeanette White, D-Windham
Sen. David Zuckerman, P/D-Chittenden
Sen. Joe Benning, R-Caledonia
Sen. Chris Bray, D-Addison
Sen. Brian Campion, D-Bennington
Sen. Brian Collamore, R-Rutland
Sen. Dustin Degree, R-Franklin
Sen. Peg Flory, R-Rutland
Sen. Jane Kitchel, D-Caledonia
Sen. Dick Mazza, D-Grand Isle
Sen. Norm McAllister, R-Franklin
Sen. Alice Nitka, D-Windsor
Sen. John Rodgers, D-Essex-Orleans
Sen. Diane Snelling, R-Chittenden
Sen. Bobby Starr, D-Essex-Orleans
Sen. Rich Westman, R-Lamoille
Read the business groups’ letter to members of the Senate: