Only in Vermont: Independent Contracts and Mandatory Work Breaks

Author: shawn shouldice Date: March 03, 2011

Last session, legislators rejected the study and instead increased the penalties employers could face if found guilty of misclassification. Lack of action, was a missed opportunity for the legislature to assist small business owners in better understanding reporting requirements, and has left them vulnerable to extreme penalties, including up to $5,000 in fines or up to 30 days in prison.
H.247 has been introduced by Reps Eckhardt of Chittenden (member of NFIB/VT), Scheuermann of Stowe, Burditt of West Rutland, Clark of Vergennes, Dickinson of St. Albans Town, Marcotte of Conventry, McNeil of Rutland town, Olsen of Jamaica, Savage of Swanton and Shaw of Pittsford. The legislation would establish a common definition of an “independent contractor” for the workers’ compensation and unemployment compensation statutes. 
NFIB/VT has heard from members time and time again that they are being penalized because the definition of an “independent contractor” is subject to interpretation and is applied in different ways with different resulting actions.
NFIB/VT supports legislation that makes clear the definition without interpretation. Vermont currently has a three-part test. H.247 would establish a four-part test with five criteria to define the third part. This proposal would allow a small business to claim the utilization of independent contractors if the new four-part test is satisfied. This standard would be easily understood by small business owners. Vermont’s small business owners are trying to comply with two definitions for workers’ compensation and unemployment insurance purposes.
NFIB/VT advocates for the passage of H.247 so that small business owners clearly understand their obligations and are not subject to illogical and unnecessary penalties because of ambiguities in the law.
H.41,a proposal to require employee work breaks has been taken up in the House General, Housing and Military Affairs Committee. The bill would put in place a new state law requiring all employers to provide a work break no earlier than two hours after a shift begins and no later than two hours before a shift ends. 
Current law requires that an employer provide “reasonable opportunities” to eat and use the facilities. However neither Vermont nor Federal laws specify a minimum break period. Rest periods and lunch breaks are provided under the discretion of the employer and the employer may also select the time and hour of the breaks.  This flexibility is important; allowing for the employee to communicate about needed periods away from work for things like doctor’s appointments, children’s school play, meeting children after school, and the like.
Last week, the committee reviewed the current laws set forth by surrounding states, finding that none have set parameters and that the proposed legislation in Vermont would be the harshest in New England.
·         Maine requires that employers give employees the opportunity to take a rest break of 30 consecutive minutes after 6 hours worked in three or more people are on duty, the nature of employment allows for frequent breaks or if the job consists of emergency cases (i.e. nursing homes or emergency medical care).
·         New Hampshire requires a 30 minute break for every 5 hours worked unless it is feasible to eat while working.
·         Massachusetts requires a 30 minute break for every 6 hours worked.
Small businesses across the state are already aware of a best practice policy and are cognizant of employee needs. NFIB/VT believes that additional mandates on small businesses are unnecessary and only limits the flexibility of small employers. While a final decision has not been made, the committee appears to be leaning toward Maine’s law that would exempt businesses with less than three employees at a time, if the nature of the job allows for ample breaks throughout the shift or the job consists of emergency cases.
NFIB/VT opposes these types of legislative mandates, because they interfere with an employer’s ability to be flexible with employees. If you are interested in weighing in to this debate please contact NFIB at 802-498-0059, we will continue to monitor work break policy initiatives and will continue to voice strong opposition of additional mandates on small businesses across Vermont. Also, please contact your local representative, by clicking here ( and urge them to oppose H.41, legislation that would mandate work breaks and eliminate your ability to be flexible with your employees.

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