Mike Hebert (Zachary P. Stephens/Reformer)
Mike Hebert (Zachary P. Stephens/Reformer)
Friday March 29, 2013

BRATTLEBORO -- When a legislator votes against a bill titled "an act relating to equal pay," it might be fair to expect some political fallout.

But state Rep. Mike Hebert, a Vernon-based Republican, said he hopes his constituents look beyond the bill's name and understand that he does not oppose equal pay for women. Instead, Hebert said he could not support other, unrelated portions of the bill that he believes will unnecessarily burden business owners.

"They should have expanded the title of the bill to be more reflective of what's in the bill," said Hebert, a second-term lawmaker who also represents Guilford.

The bill passed the state House last week on a 115-22 vote. It is intended to "clarify and strengthen existing laws regarding equal pay and the prohibition of discrimination in employment, housing and public accommodations."

Equal pay for equal work is the provision that has received the most attention. Despite the fact that pay discrimination was outlawed by both the federal government and by Vermont legislators 50 years ago, officials say women still make roughly 78 percent of what their male counterparts earn at the national level.

Things are only slightly better in Vermont.

"Women make roughly 84 percent of what a male does for performing equivalent work (in Vermont)," said state Rep. Dick Marek, D-Newfane. "That disparity has narrowed over the years, but not nearly enough.


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Lawmakers say pay discrimination is not always intentional.

"Some employees may not have a fair opportunity to negotiate pay because they lack the opportunity to know what similarly situated employees earn," the House bill's introduction says. "Other employees may avoid or be channeled into lower-paying assignments or career paths that are viewed as more compatible with family needs."

Officials add that, in some cases, "employees may temporarily drop out of the workforce because there is insufficient workplace flexibility; when such employees do return to the workforce, they may be unable to catch up to employees performing the same work."

So the legislation attempts to address those issues first by outlawing all pay discrimination in cases where employees of both sexes perform work requiring "equal skill, effort and responsibility" and when such work is "performed under similar working conditions."

However, different wages are allowed under a seniority or merit system or when "earnings are based on quantity or quality of production."

The legislation also says employees are allowed to discuss their wages with others and to inquire about others' wages, though an employer is not required to disclose what others earn.

There is another key provision: At least twice a year, an employee can request -- and an employer must consider in "good faith" -- a request for longer-term flexibility in working arrangements.

That could include, for example, a request to change daily arrival or departure times or to work from home several times a week.

"They're not obliged to grant them," Marek said. "But it actually says that there should be this consideration."

Marek was among those voting in favor of the bill last week.

He said that, before passing the bill, officials also "locked in some tighter standards" for reviewing claims of unequal pay. And he views flexible work arrangements as a key component of the legislation.

"A lack of flexibility in working arrangements clearly has a disparate impact on women . . . who continue to have a disproportionate amount of responsibility for family related issues," Marek said.

Hebert said there's no debate about the fairness of compensating women and men equally.

"Everybody's for equal pay," he said.

But Hebert has concerns that an unscrupulous employee could use the bill's language as a "loophole" in disputes with management.

The law would ban "retalitation" against employees who exercise their rights as set forth in the bill. Hebert wonders whether that could stop an employer from firing a staffer who clearly is not performing his or her job; the employer, Hebert contends, might fear that the worker would claim he or she is being retaliated against.

"I'm concerned with the business owner who gets caught up in this," Hebert said, adding that "most responsible employers" deal with flexibility and pay issues on their own without legislative action being necessary.

"It puts another layer of burden on the business owners," he said.

Hebert was joined by 21 other dissenters including Rep. Anne Donahue, a Northfield Republican who said she also is concerned about the bill's establishment of a committee to study paid family leave in Vermont.

"There are times that we overdo it in the balance between important public interests and burdens on our small businesses. This is one," Donahue said in comments recorded in the official House journal. "And the next direction the bill suggests? Paid family leave? We are setting ourselves up for unintended and unsustainable consequences."

However, Hebert was the only House member from Windham County to vote against the legislation. Rep. Valerie Stuart, a Brattleboro Democrat, said after the vote that she has personal experience with pay discrimination.

"It pains me to say that, during my over 30 years as a professional woman, with 14 years spent working in New York City and 19 here in Vermont, I experienced some of the most unfair and abusive treatment by a male supervisor who got paid twice as much as I did and who worked half as much as me and my staff of five," Stuart said in House journal comments. "Do I believe our daughters need us to continue to fight for equal pay and fair treatment under the law? You bet."

The House bill now goes to the Senate, where it has been referred to the Economic Development, Housing and General Affairs Committee.

Mike Faher can be reached at mfaher@reformer.com or 802-254-2311, ext. 275.