VT Human Rights Commission Unanimously Finds State Police Discriminated Against Daniel Alejandro Lopez-Santiago During September Traffic Stop

VT Farmworkers Welcome Decision As Another Step Forward for Community

Thursday, December 1- Winooski, VT– The VT Human Rights Commission held a hearing in Winooski this morning, in which they heard final remarks from Daniel Lopez and the VT Department of Public Safety, before ruling unanimously that the VT State Police discriminated against farm workers’ Daniel Lopez and Antonio-Meza Sandoval during a traffic stop on September 13 on I-89 in Middlesex, VT. The Human Rights Commission’s preliminary report asserted, “The Report makes a preliminary recommendation to the Vermont Human Rights Commission to find that there are reasonable grounds to believe that the Department of Public Safety unlawfully discriminated against Daniel Alejandro Lopez-Santiago with respect to national origin, race, and color in violation of Vermont’s Fair Housing and Public Accommodations Act.”

At the hearing today, Lopez read a prepared statement to the commission sharing, “When the officer stopped the truck in which we were traveling, and he approached us, I thought nothing would happen because we were not doing anything wrong. But it was the opposite. Officer Hatch focused on Antonio and I due to our skin and hair color, moving away from the original reason for the stop.” In the end, it turns out the VT Human Rights Commission agreed with Lopez and disagreed with the VT Department of Public Safety, which continued to defend the actions of the State Police during the hearing today.

Upon hearing about the ruling in his favor Lopez commented, “We won. Its great. Its a victory not only for us but also for our organization and the farm worker community.” Lopez has been transformed by the incident, and since has been volunteering much of his time to work with the VTMFSP for farm worker rights in Vermont. After hearing about the victory Lopez was already on to the hard work ahead, “Now we just need to build upon this victory and make sure we use it as an opportunity to benefit future generations.”

After being detained back in September Lopez, active with the VT Migrant Farmworker Solidarity Project (VTMFSP), contacted the organization setting off a chain of calls and rapid responses eventually leading to the farmworkers release from Border Patrol; the arrest of 3 Vermonters who blocked a Border Patrol Vehicle; and later that evening with the Governor calling for an investigation into the incident. Just a few weeks later five farm workers from the VTMFSP had a good meeting with Governor Shumlin and were extremely pleased when, just weeks later, a new State Police Bias-Free policy was announced directing officers to not use State resources for immigration enforcement. Additionally, the VTMFSP has been very pleased with State Police Colonel Tom L’Esperance efforts who has since reached out to discuss implementation of the policy and collaboration on trainings.

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Contact
Robyn Shepherd, Media Relations (212) 519-7829
Dan Barrett, Staff Attorney (802) 223-6304 x.112

MONTPELIER – The Vermont Human Rights Commission (HRC) has moved to intervene in an American Civil Liberties Union case in support of a lesbian couple who were told by a resort that they would not be able to hold their wedding reception because the resort has a “no gay receptions” policy. If the court were to allow the Wildflower Inn to discriminate against Kate Baker and Ming Lesley, the HRC states that it would be unable to enforce the Vermont Fair Housing and Public Accommodations Act, which prohibits denying access to public accommodations based on sexual orientation.

“The state’s action underscores the fact that this is a straightforward case of discrimination,” said Dan Barrett, staff attorney with the ACLU of Vermont. “We’re glad to see that the Human Rights Commission is as concerned as we are about the threat that the Wildflower Inn is posing to Vermont’s non-discrimination guarantees.”

In its answer to the legal complaint, the Wildflower Inn argued that owners of the resort had a First Amendment right to turn away Kate and Ming and asked the court to declare the Vermont Fair Housing and Public Accommodations Act unconstitutional.

“The First Amendment does not give public commercial businesses a license to discriminate,” said Joshua Block, staff attorney for the ACLU Lesbian Gay Bisexual and Transgender Project. “When a business chooses to opens its doors to the public, it must follow the state’s public accommodations laws and can’t pick and choose which customers it wants
to serve.”

For more information on this case, please visit: www.aclu.org/lgbt-rights/baker-and-linsley-v-wildflower-inn. A copy of the HRC’s motion to intervene may be found at the ACLU of Vermont’s website: acluvt.org/docket/#baker.

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Vermont State Police cruiser

Two years ago, a man and a woman stood by the side of Route 7 in Ferrisburg. Their vehicle had run out of gas. Neither of them had any money. A Vermont State Police trooper came by, and instead of offering them help, she asked them for their driver’s licenses. When they weren’t able to produce the documentation, she detained them on the spot.

The couple was from Mexico. They had been picked up in Addison County, a region well-known for its large Mexican migrant worker population and tolerant local law enforcement agencies that refuse to investigate the immigration status of undocumented Mexicans not suspected of criminal activity.

In the Route 7 incident, the State Police took a different tack. The trooper detained the 20-somethings with Arizona plates and reported them to Immigration Customs Enforcement. They were eventually deported.

In Hartford last month, police struck a man with a night stick, handcuffed him, blasted him with pepper spray and dragged him out of his own home because a cleaning lady had reported a “burglary in progress” at the Wilder residence, according to a report from the Valley News. The man had passed out in a bathroom on the third floor because of a medical condition. A neighbor tried to explain that the man police hauled out of the town home was not a burglar at all, but actually lived there, according to Jim Kenyon, a columnist for the newspaper. The intervention was futile; Hartford police threatened to incarcerate the neighbor as well. The man eventually was released.

The man in the second instance — allegedly abused by police — is black. Police didn’t question the maid’s assumption that a black man on the premises was conducting a robbery. That police action is under investigation.

Civil rights activists say these are classic examples of racial profiling. Anecdotal reports of biased police behavior in Vermont are numerous, representatives of minority groups say, and there is a perception among minorities and immigrants that they are not treated fairly by law enforcement here.

And as the state, which is 96.5 percent white, sees an influx of refugees and workers from around the world — one out of every three new Vermont residents is a racial or ethnic minority, according to the Vermont Advisory Committee to the U.S. Commission on Civil Rights — advocates and law enforcement officials alike say they are trying to curtail incidents of racial profiling.

But change is long in coming. It was only last year, after the Vermont advisory committee released a damning report that cited numerous examples of abuses, that law enforcement officials began to step up the pace of reforms.

It recommended six steps Vermont police should take to address rampant racial profiling problems. Of these, two have been tackled head-on this year:

1. The Vermont State Police began collecting statewide racial profiling data as of July 1
2. The attorney general’s office has introduced a draft model for bias-free policing rules for the state’s more than 70 local law enforcement entities.

No progress has been made in the following areas:
* An expansion of compulsory comprehensive training for anti-bias policing at the Vermont Police Academy for officer certification and in-service training throughout an officer’s career;
* Installation of video cameras in all front-line patrol vehicles to record all motor vehicle stops;
* The development of police-community partnerships like Uncommon Alliance to promote bias-free law enforcement practices around the state;
* Legislation that prohibits racial profiling of motorists and pedestrians.

State and local efforts to purge agencies of racial prejudice are complicated by an issue that is intertwined with racism: immigration. In Vermont, roughly 1,500 undocumented Mexican migrants work on Vermont farms and provide crucial support for the state’s teetering dairy industry. The workers, especially those who live on farms near the international border, are forced to stay put or risk becoming targets for the police or the Border Patrol. Those who are picked up outside a Wal-Mart, en route to visit friends and family, or even right off the farm – are typically deported.

An immigration backlash has reached a fever pitch in other states. Last spring, the Arizona Legislature passed a law empowering local and state officials to act as federal immigration officials. Police officers can detain and arrest anyone they suspect of being undocumented, effectively making it a crime to live in the state as an undocumented foreign national.

Outraged at what they see as a violation of civil rights, activists have called for an overhaul of national policy for its failure to address the burgeoning population of undocumented Mexican migrant workers.

The Burlington City Council recently passed a resolution calling for a boycott of Arizona because of its new state law, which requires local and state police to arrest anyone suspected of being an “illegal alien.”

But in practice, there is nothing to prevent Vermont law enforcement officials from playing a similar role under certain circumstances. Since the 9/11 World Trade Center attacks, local and state police have stepped up their surveillance to identify potential terrorist threats in conjunction with the Department of Homeland Security.

Vermont law enforcement officials are not required under federal law to detain anyone they suspect of being an “alien,” but they have the authority and discretion to do so, under the rubric of suspicion. Once an undocumented foreign national is detained, a local police officer or state trooper calls the Border Patrol. The person is then detained until Immigration Customs Enforcement (ICE) is available to investigate and process their immigration status. Detainees are sent to a Clinton (N.Y.) County jail or a large national detention center in Buffalo. Eventually, they are deported.

Comprehensive statistics of “illegal alien detentions” were unavailable at this writing from ICE, but the Vermont State Police released the following total Vermont detentions by year: 28 in 2008, 19 in 2009, and 11 in 2010. These numbers do not include Border Patrol, county sheriffs or local police department apprehensions. The Mexican consulate told Vermont Public Radio that 123 Mexicans were detained in Vermont in 2006; that same year, police arrested 33 Mexicans in Massachusetts.

No Vermont law enforcement agency has signed a memorandum of agreement with Immigration Customs Enforcement under Section 287(g), which “allows a state and local law enforcement entity to enter into a partnership with ICE,” to become a de facto immigration agency.

The only state in New England to adopt 287g is Rhode Island. In 2008, the governor of Rhode Island signed a MOA with ICE, which requires state troopers to act on behalf of the federal agency. The agreement also requires that the employment eligibility of all executive branch workers be electronically verified through a program called E-verify. Municipal police forces in Hudson, N.H., and Danbury, Conn., and the Massachusetts Department of Corrections have also signed on with ICE. In all, 71 law enforcement entities in 28 states have formed ICE partnerships.

Vermont State Police troopers

Vermont police also sometimes ask pedestrians and passengers of vehicles for IDs to determine immigration status and report suspected “illegal aliens” to the Border Patrol. (The notable exceptions are Burlington, South Burlington and Middlebury police departments, which have adopted “don’t ask, don’t tell” policies regarding immigration investigations, unless the individual is a suspect in a crime.)

The Vermont Supreme Court determined that there is no lawful basis for police to investigate beyond the initial purpose — that is issuing a ticket to the driver. An officer is not supposed to inquire about immigration status of passengers in a car unless there is a specific suspicion about the occupants, according to Robert Appel, executive director of the Vermont Human Rights Commission. The U.S. Supreme Court, however, has ruled otherwise.

The upshot is, Vermont State Police, and many police departments and sheriffs, can help to enforce federal immigration law, and will likely continue to do so, even at a time when officials are attempting to address ongoing racial profiling complaints in the midst of a budget crunch.

That’s because new policies developed by the Vermont attorney general and the Vermont State Police sidestep the issue of immigration status.

Paul Duquette, chief of the Newport Police Department and a former head of the Vermont Association of Chiefs of Police, describes the AG’s policy as a template “that you modify for your own area.” The majority of association members have already adopted anti-bias rules that they developed as a group last year; the AG’s recommended policy will be released by early fall.

“(The AG’s policy) covers the high points that should be addressed, and then locally departments can flesh it out a little,” Duquette said.

The current AG draft includes a glaring omission, as far as advocates are concerned: The policy doesn’t mention whether the immigration status of individuals should be taken into account, nor does it extend protection to victims and witnesses of crimes who may be undocumented foreign nationals. The latter is part of the Vermont State Police, Winooski, Burlington and S. Burlington rules because officials say immigrants won’t report crimes if they fear they’ll be deported.

John Treadwell, Vermont assistant attorney general, said his office was not asked to look at immigration status within the context of a “bias-free” policy.

“This office believes that the draft provides substantial guidance and clarity regarding bias-free policing,” Treadwell said. “The intent was to provide broad-based guidance to law enforcement agencies to establish a framework within which all law enforcement functions are conducted in a bias-free manner.”

Robert Appel, of the Human Rights Commission, said questions about immigration status and racial profiling go hand in hand. Police – state troopers, sheriff’s departments and local police departments – sometimes use minor traffic violations and routine encounters to apprehend immigrants and people of color in Vermont whether they are suspected of a crime or not, he said, and for this reason, he supports the less expansive Middlebury Police Department approach.

“Under the Middlebury policy, the directive says don’t inquire about immigration status unless there is suspicion that the person is engaging in criminal activity or is the subject of an outstanding warrant or a threat to homeland security,” Appel said. “In addition, the Middlebury policy recognizes a matricula consular, a government identification issued by the Mexican consulate as proof of identity. That’s where I’d like to see the rest of the state.”

Duquette says this isn’t a worry in Newport, where, he says, the Border Police are a presence in the city and routinely apprehend undocumented foreign nationals.

“As far as we’re concerned, we don’t have the need to go around asking for people’s immigration status,” Duquette said. “If somebody’s broken down, and they don’t look like they’re from around here, we’re going to pull over and say can we lend you a hand.”

Appel said the template also neglects to address “disciplinary procedures” for officers or “complaint channels” for aggrieved individuals — other than to state each policy should have one. Ideally, he said, the Vermont Human Rights Commission would be the enforcement entity.

While some local departments have already adopted bias-free policies, the effort is by no means uniform, because Vermont’s law enforcement system, like its educational system, is highly decentralized, Appel said. Though the attorney general can make recommendations – on bias-free policing policy or Taser use, according to Treadwell — it doesn’t have the authority to require each municipality to take action. Only the Legislature can mandate standards. An attempt to introduce legislation to prohibit racial profiling failed in 2002.

The Vermont State Police will be working closely with the attorney general’s office to help finalize the statewide model policy. It has had its own bias-free policy since 2003, which requires that officers not consider race and other “improper criteria,” such as gender or sexual orientation, in establishing reasonable suspicion or probable cause.

The new policy extends to all members of the Vermont State Police and it outlines procedures for screening calls from members of the public who make biased reports. Sometimes Vermonters, police say, will call in a sighting of a group of young black men hanging out in a park, or an Hispanic woman catching a bus on Shelburne Road. Police dispatchers and other officers are required to explain to callers that their complaints are biased and unacceptable; that unless there is criminal activity, they have nothing to report.

The new policy does not include “don’t ask, don’t tell” language regarding immigration status.

Thomas Tremblay, the commissioner of the Department of Public Safety helped to develop Burlington’s bias-free policing policy when he was the city’s police chief. He said more liberal immigration rules, like those promulgated in Chittenden County, wouldn’t be possible for the Vermont State Police to adhere to because they often provide backup surveillance services for the Border Patrol.

Col. James Baker, the former head of the Vermont State Police, decided before he retired a few years ago, that he wouldn’t allow troopers to pursue illegal migrant workers on local dairy farms. That policy hasn’t changed, Tremblay said.

Cowherd

“We are not interested in going on raids to farms and seeking out undocumented workers on our farms or in our communities unless they’re involved in criminal activity or unless we stumble onto them through routine enforcement activity such as traffic stops,” Tremblay said.

“If we are called to investigate a crime, and we come across someone and we’re seeking identification, whether we pulled you over in a car or whether we were investigating a situation you were involved in, we always identify the people that we’re talking to,” Tremblay said. “When people can’t offer sufficient ID, we continue to investigate to determine their identity, whether it be a car stop or a criminal investigation or suspicious behavior. If we have the authority to stop and detain you, we’re going to seek to properly identify you, and there comes the potential conflict for folks who are not properly documented.”

Asking passengers for IDs as part of a routine traffic stop is a possible scenario, Tremblay said.

“It’s very difficult to try to explain what an officer might see in the car,” Tremblay said. “Suspicions might be raised for a variety of reasons. I’ve certainly seen situations where there is a car full of individuals that are pulled over, and nothing suspicious is raised, and the operator is the only one identified. And there are other situations where suspicions are raised and law enforcement may seek to identify the people in the car.”

Appel is disappointed that the Vermont State Police policy does not list immigration status as an improper criteria for initiating an investigation or police encounter.

“Given the tightness of state budgets, the VSP, like all Vermont police agencies, has its hands more than full in enforcing Vermont statutes and providing caretaking functions as necessary without taking on the vast and controversial task of enforcing our questionable federal immigration policies,” Appel said.

Though the newly revised policy (the original was created in 2003), includes improvements, such as the screening of biased reports from citizens, Appel said it contains a crucial flaw that renders it unenforceable: In order to show that the rule has been violated, it must be demonstrated that the biased act was based “solely on improper criteria,” that is solely on race, for example.

“A trooper may watch 30 cars go by on the Interstate traveling at 74 miles an hour, and decide to stop the late model Mercedes with Florida plates operated by an African-American man at the same speed,” Appel wrote in an e-mail. “Such a stop, although likely to be motivated by bias, is not based “solely” on race.

“I have pushed for years to change the term ‘solely’ to ‘in whole, or in part,’ which is a standard that one attempting to show bias in the hypothetical above could probably meet,” Appel wrote.

In addition, Appel said Tremblay ignored his attempts to help with the development of the policy; Tremblay didn’t include him, in spite of his many years of experience with racial issues. His final criticism: The policy is apparently not available on the Department of Public Safety’s Web site.

Until the Vermont State Police started collecting racial profiling data at the beginning of this month, Vermont had the ignominious distinction of being the only state besides Mississippi that didn’t track the number of minority drivers an individual police officer pulls over.

Four local police departments in Chittenden County – Burlington, South Burlington, Winooski and the University of Vermont – began collecting racial profiling data for routine traffic stops a year and a half ago, and Northeastern University in Boston is now analyzing the results.

Allen Gilbert

Thomas Tremblay, the commissioner of Public Safety, said the State Police began a pilot traffic stop program in January, and recently conducted diversity training and updated its anti-bias policy. An analysis of the statewide statistics they have begun to amass won’t be available for more than a year, he said.

Allen Gilbert, executive director of the Vermont chapter of the American Civil Liberties Union, said it took 15 years for activists to get local and state law enforcement to recognize “what’s been a flashpoint in this state for longer than 15 years — the perception that there’s rampant racial profiling in (Vermont).”

“The problem has been that nobody has been able to determine whether there is indeed racial profiling, because police have resisted the collection of racial profiling data when they stop people, particularly motorists,” Gilbert said.

Tremblay bristles at the idea that the State Police haven’t moved fast enough. “The reality is, the Vermont State Police have been at the table for a couple of years now,” Tremblay said. “It’s very different for a small department to collect data. We have 12 barracks across the state with 300-plus troopers, and so we have been increasing training around diversity and cultural competency and updating our policies and putting ourselves in best position to collect data.”

The data may be long in coming, but it’ll be worth it, in Wanda Hines’ book.

Wanda Hines

Hines is the driving force behind Uncommon Alliance, an organization that brings together law enforcement officials and local community members to eradicate racial profiling from the criminal justice system.

“What’s fantastic about that is, once you establish that baseline data field, the results will provide you with better tools to better manage local law enforcement, to create more equitable communities, to enhance quality of life and to move communities as a whole, our state as a whole, to a place where everybody is treated fairly,” Hines said.

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Mexican flag, stockxchng image

MIDDLEBURY — Middlebury Police Chief Tom Hanley is a burly man who plays guitar, cracks jokes and talks loud. He’s also instituted a policing policy in his town that many at the Vermont State Conference on Migrant Farmworkers think should be emulated statewide.

Essentially, Hanley is aware of undocumented farm workers in or around Middlebury, but he’s not interested in their status. That, he says, is largely because concerning himself with their citizenship would be counterproductive to his real job, which is good policing – catching bad guys and keeping the community safe and peaceful.

Harassment of undocumented workers creates a subculture of people who are afraid to report crime, he said.

In this country, police powers are vested in the states, he said. “The FBI can’t arrest you for burglary. Our authority is enforcing state laws.” The only time that his department can detain someone for an immigration violation is if ICE (Immigration and Customs Enforcement) calls and says there’s a detainer on this person, and we need you to hold them.

“Everybody in our community is a member of that community, and we don’t care where they come from,” Hanley said.

Harassment of undocumented workers creates a subculture of people who are afraid to report crime, he said.  “I don’t call that bad policing, it’s not even policing. It’s a waste of time to question people who look different or speak a different language.

“We’d have predators in our community who victimize people they know won’t report it. That would undermine our ability to keep public peace. We don’t go searching around for people who have Immigration violations. We’re not interested. Somebody who gets up in the morning and goes to work every day is of no interest to us.”

Others suggested that one thing that might come of the conference is for people to pressure their own law enforcement agencies to institute a similar policy in order to improve safety and crime reporting.

State Police are rethinking their policy, said Robert Appel, executive director of the Vermont Human Rights Commission, in part because of a Vermont incident where farm workers were pistol-whipped and robbed on payday. “It’s an ongoing conversation because it is bad policy for ne’er do wells to get away with crime because they know the victims won’t report it.”

One of the bigger problems for undocumented workers is the need to be invisible since visibility increases the risk of detection.

Barbara Whitchurch, of the New Neighbors Project at the Vermont Center for Crime Victim Services, said her organization can help victims of crime or abuse.

“Anybody can make a report to ICE and they’re required to do something,” she said. “The fear of deportation leads to under-reporting (of crime). We create pockets of people who are sitting ducks. It doesn’t take long for victimizers to realize you’re not going to report it.”

The fear of deportation colors everything, Whitchurch said. But her organization can walk victims through a crime and the legal process, and even help with compensation. “We’re trying to institute policies that are less of a risk,” she said.

The least risky is a phone call, particularly to a domestic violence group, where anonymity is safeguarded, she said.

Appel said the Human Rights Commission accepts complaints from people who feel they have been targeted.

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Ursula Stanley

Ursula Stanley’s daughter is now 3 years old. Stanley’s fight with the state over paid vacation and sick time is going on four years, and it isn’t over yet, but she hopes she’ll soon get her day in court.

Last week, in Washington County Superior Court, the Vermont Human Rights Commission filed a discrimination complaint on her behalf against the Vermont Agency of Transportation under the Parental and Family Leave Act.

Stanley, a resident of Williamstown, alleges that the state denied her paid vacation and sick-time benefits while she was out caring for her newborn baby in 2007. When she took 12 weeks of unpaid leave time under the Vermont Parental and Family Leave Act, from April to August that year, Stanley soon realized that the agency wasn’t accruing her paid vacation and sick time on her pay stubs.

Her supervisor contacted the human resource department at the agency, and Stanley says “she got the same answer I’d been getting: that I wasn’t supposed to accrue leave. And that’s always been their stance on unpaid family or parental leave — that you’re not going to accrue your leave-time benefits.”

“It’s been consistent forever,” Stanley says. “Everybody’s argument is, this (is) how we’ve always done it.”

But Stanley, 33, had researched the law and determined she was entitled to her sick and vacation time while she was out on unpaid leave. The civil engineer, who has designed bridges for the state for the last five years, stuck to her guns and initially lodged a complaint with the Human Rights Commission in November 2007. Six weeks later, the agency “admitted” her “factual allegations, but denied that such action by the agency violated the Parental and Family Leave Act,” according to the Human Rights
Commission’s investigative report.

Last May, the commission tried to negotiate a settlement with the state Attorney General’s Office — to no avail. Robert Appel, executive director of the commission, says state statute is clear-cut: Workers are entitled to all of their employment benefits while they are out on unpaid leave to care for a child or family member.

“We tried to settle it beforehand, but now the court has to tell us what the law is, and we’ll see who’s right,” Appel says.

The Agency of Transportation asserts that the provision regarding employee benefits honored during unpaid leave under the Vermont Parental and Family Leave Act only applies to health insurance benefits, not paid leave-time accrual, according the commission’s report.

Stanley says her other benefits stayed intact while she was on unpaid leave.

“Their big argument was, when state statute said employment benefits, they meant only insurance, like medical insurance,” Stanley says. “One of my arguments back to that was we have a lot of employment benefits. We have leave time, we have an employee assistance program, we have retirement, and those all continued.”

This is the second case filed in a month against the state for alleged violations of workers’ rights. Earlier this month, Thomas Somers, Stanley’s lawyer, sued the state on behalf of 34 workers to recover
alleged unpaid overtime.

At first blush, Stanley’s case seems like a lot of fuss over a little bit of time – she is suing the state for 30 hours of sick time and 30 hours of vacation time. But if the commission proves the state has violated her
rights, the legal ramifications could be enormous for other state workers who take unpaid leave to care for an aged parent or newborn infant.

As part of the lawsuit, the commission “permanently enjoin(s) the State of Vermont from any further violations (of the law) not only with respect to Ms. Stanley, but also with respect to all similarly situated
employees.” The suit would also order the state to credit Stanley and other state workers, whose rights have been violated under the Vermont Parental and Family Leave Act, with their lost leave time.

Appel says, “The Legislature wouldn’t have passed this statute and not meant for it to be used broadly.”

Ironically, several of the state’s own Web sites interpret the law the same way in which the commission does. The Attorney General’s Office guidelines for the Vermont Family and Parental Leave Act state that “Employee/employer each pay the proportion of all benefits that they did during regular work time.” The Vermont Commission on Women’s Vermont Guide to Parental and Family Leave also says that during leave, employees earn their vacation and sick leave, and whatever other benefits the employer provides.” The Vermont Guide to Health Care Law 2006 and the Vermont Employment Law Handbook make similar statements.

Somers, Stanley’s lawyer, asserts that the state is acting as if it’s above the law. He says the state is “quite imperious” in its dealings with employees, and he said its unwillingness to settle with his client is a “contemptuous act.”

“Everyone who works for the state has this issue going on,” Somers says. “It’s amazing, because it flies in the face of the two agencies that enforce the law against private employers. It’s as if, (the state is
saying) well, we don’t have to comply with the law, and you’re going to have to fight us all the way to the Supreme Court to get your way.”

Three officials from the Attorney General’s Office and Department of Human Resources contacted for this story refused to comment, and information regarding the number of recent complaints filed by state workers under the Vermont Parental and Family Act isn’t collected by the Department of Human Resources, according to one official.

It would appear that the state has a lot to lose. If employees are allowed to accrue sick and annual leave during VPFLA, “the cost to the State would be between $127,757 and $201,000 per year,” according to a statement from John Berard, a labor relations specialist for the Vermont Department of Human Resources, cited in the commission’s investigative report.

Stanley’s lawyer alleges that dozens of state workers are denied sick and vacation time under the family and parental leave law.

“This going to affect a lot of employees and you know it’s going to cost the state some money,” Somers says. “They’re trying to delay, delay, delay and borrow this money from the employees, just like they’re doing with the overtime case.”

The financial repercussions of losing 60 hours of pay are not insignificant to Stanley. She says because she was denied those benefit hours, her husband lost time at work to care for their infant when Stanley was sick. In addition, Stanley says she had to argue with the Agency of Transportation in January of 2007, months before her daughter was born, over the unpaid leave. The Agency wanted her to use up her paid leave time first. She said AOT backed down eventually.

“What got me started was I knew I could take my leave unpaid — I had already done that research,” Stanley says. “We have a union contract and so I knew I could take it unpaid and when I said that she said well no I had to use up all my leave and then take it unpaid if I had leave time still and I didn’t really believe her and I started doing research and that’s when I realized that I was supposed to accrue, which they told me I couldn’t do either.”

Stanley describes her initial contact with the Human Rights Commission as “nerve wracking.”

“It took a long time before I would call the commission to even ask anything,” Stanley says. “When I did, I left my phone number, didn’t say where I worked or anything, but they obviously knew I was a state employee based on my phone number.”

She says she has not experienced any repercussions at work, but she is frustrated that the issue is taking so long to resolve.

“The Human Rights Commission decided in my favor, and the state still chose not to negotiate,” Stanley says. “Frankly, I don’t know their rationale, but I’m just assuming they’re waiting people out. They’re assuming that workers aren’t going to go through this.”

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