Workers’ Rights

Updates:

  • More good news for farm and ranch workers: The New Mexico Center on Law and Poverty and Working America released the citations and inspection report issued by the Occupational Health and Safety Bureau (OHSB, better known as “OSHA”) on January 28, 2014.The inspection was triggered by a dairy worker’s complaints about working and living conditions for employees at the Vanderploeg Dairy in Bosque Farms, New Mexico.Farm and ranch workers have a right to file complaints with OHSB when the health or safety of their workplace has been compromised by their employer. In the August 13, 2013 inspection of Vanderploeg Dairy, inspectors investigated several concerns raised by an aggrieved dairy worker who reported “experiencing headaches and nausea due to exposure to unknown chemicals that are in unlabeled containers,” and that “employees are not issued any personal protective equipment (PPE)” and that in this facility where milk is produced for consumers, “bathroom facilities are not kept in a sanitary condition, and there is no running water for washing.”

    OHSB found merit in these complaints and issued two citations with accompanying fines: a ‘Serious’ citation with a $675.00 fine for not monitoring employee exposure to formaldehyde, and not providing exposure information to employees; as well as a ‘Serious’ citation and a $675.00 citation for not maintaining a hazard education program in a dairy where a formaldehyde process is used.
    Two other ‘Serious’ citations were issued without fines, related to not listing hazardous chemicals found on site in the dairy and not providing information or training to employees about these hazardous chemicals.

    Read the press release here. Read the OSHA documents and citations/ fines here.

  • Good news for workers: The New Mexico Court of Appeals rules that farm and ranch workers have a right to workers’ compensation!Despite the New Mexico District Court ruling in December, 2011, that the state workers’ compensation law is unconstitutional for excluding the agricultural industry from having to provide workers’ compensation to all workers, the state Workers’ Compensation Administration had refused to enforce the decision, leaving many very low-paid field workers without this thin but important safety net. In a recent ruling however, (filed 11/26/13), the New Mexico Court of Appeals held that the New Mexico Workers’ Compensation Administration (WCA) must enforce workers’ compensation law for farm and ranch workers.The very real implication of this holding is that New Mexican farm and ranch workers now unequivocally have a right to the protections of workers’ compensation insurance, a major victory for some of our state’s most vulnerable workers.The New Mexico Center on Law and Poverty will be monitoring the state Workers’ Compensation Agency to ensure that they begin robust enforcement of the law for agricultural workers. The Center is also planning to send notification of the ruling to agricultural employers, Workers’ Compensation Administration judges and court personnel, and the state legislature.
  • In July of 2013 the Center on Law and Poverty filed a civil rights complaint against the New Mexico Department of Workforce Solutions for its failure to provide meaningful access to individuals with limited English proficiency, those with disabilities and the elderly in its unemployment program and wage and hour services. The complaint was filed with the United States Department of Labor’s Civil Rights Center.
  •  The Center on Law and Poverty recently conducted a survey on the living and working conditions of New Mexico’s farm and dairy workers.  Read our 2012 report, “Human Rights Alert: New Mexico’s Invisible And Downtrodden Workers.” (English and Spanish)
  • Historic victory for New Mexican agricultural workers!  The Center on Law and Poverty, together with farm and dairy workers, won the right to workers’ compensation for all agricultural workers in New Mexico.  The judge ruled that excluding agricultural workers from workers’ compensation is a violation of the Equal Protection Clause of the New Mexico Constitution. Read the judge’s opinion here.  Since this victory we have successfully litigated several dairy worker workers’ compensation claims.  These workers, whose employers did not have workers’ compensation insurance, were provided with the benefits they deserve as New Mexican workers.  We are also actively working on several other similar cases.
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Farmworker Rights:

New Mexico is a state that greatly values its agricultural roots. Few people realize that this important sector of New Mexico’s economy thrives on the backs of people who live in stark poverty – New Mexico’s agricultural workers. There are more than 10,000 agricultural workers in our state, all of whom labor under harsh conditions in dangerous jobs while being paid a pittance. They are widely excluded from many labor laws available to most other workers. Many of New Mexico’s agricultural workers are field workers and are some of the poorest wage earners in the nation, earning an average household income of $9,000 per year for a family of four. Our dairy and cattle workers earn approximately $18,000 per year. The Center on Law and Poverty is working to improve the public policies and conditions under which agricultural workers labor.

Workers Comp Page Photo 2

  • Victory! New Mexico’s Agricultural Workers Have a Right to Workers’ Compensation
    According to the U.S. Department of Labor, agriculture is one of the most dangerous occupations in the nation. Field workers suffer dehydration, broken bones, repetitive stress injuries, farm equipment accidents and exposure to pesticides. Dairy workers are constantly exposed to the inherent dangers of working with large, dangerous animals and dairy machinery, often sustaining serious injuries.Despite the important role that farm, dairy and ranch workers play in our state economy and the high incidence of injury they experience while doing so, they have been intentionally excluded from protections offered to other workers under the New Mexico Workers’ Compensation Act (“Act”).Currently, the Act mandates that all employers with three or more employees purchase workers’ compensation insurance for those employees. Until very recently, the only exceptions to this rule were for agricultural workers and private domestic servants. If agricultural workers were hurt on the job, they were not entitled to the health care, disability or rehabilitation benefits that help other workers get back on their feet after an on-the-job injury. Watch our short video that illustrates the real life effects of excluding agricultural workers form the protections of workers’ compensation.The farm and ranch laborer exclusion to the New Mexico Workers’ Compensation Act has recently changed. In August of 2009, on behalf of New Mexico farm and dairy workers, the Center on Law and Poverty filed a lawsuit against the New Mexico Workers’ Compensation Administration, charging that the exclusion of agricultural workers from the Workers’ Compensation Act violates the Equal Protection Clause of the New Mexico State Constitution. The plaintiffs asserted that the exclusion unconstitutionally discriminated against farm and ranch laborers by excluding them from workers’ compensation protections – treating these workers differently than it treats other workers in the state.After over two years of litigation, in December 2012, state district court Judge Valerie Huling issued her ruling, declaring the exclusion of agricultural workers from mandatory workers’ compensation unconstitutional. According to this ruling, the employers of agricultural workers in New Mexico are now obligated to purchase workers’ compensation insurance for their employees. However, the Workers’ Compensation Administration (“WCA”) is taking the position that the judge’s ruling does not control the agency. The WCA is currently appealing the issue of whether or not a state district court has the jurisdiction to order it to process the plaintiffs’ claims for workers’ compensation without applying the unconstitutional farm and ranch labor exclusion. We believe the district court clearly has jurisdiction to do so and we will defend the victory in New Mexico’s appellate courts.

    The Center on Law and Poverty continues to work with injured farm, ranch and dairy workers to ensure that they get the workers’ compensation benefits that they are entitled to. Since the ruling we have successfully obtained workers’ compensation benefits for several dairy workers and are actively pursuing claims in several other cases. We also understand that more dairies are buying workers’ compensation insurance than before. Injured farm, ranch and dairy workers are encouraged to contact us if they desire assistance obtaining workers’ compensation for their on-the-job injuries.

 

  • Report on the Living and Working Conditions of New Mexico’s Farm and Dairy Workers
    In 2012 the New Mexico Center on Law and Poverty conducted a survey of New Mexico’s farm and dairy workers. With the assistance of several community organizations, 193 field workers and 60 dairy workers were surveyed about their wages, income, health and safety on the job, work hours, access to health care, retaliation and other issues. While there is substantial information on agricultural workers in other states, we noticed a dearth of such information for New Mexican workers. The purpose of the survey was to gain knowledge about the living and working conditions specific to New Mexico’s agricultural workers and to use this information to improve public policy that affects agricultural worker labor conditions.The survey sadly confirmed what we knew anecdotally: that labor violations are rampant on New Mexican farms and dairies and that New Mexican agricultural workers continue to be among the most vulnerable workers in our state. The following are some of our findings:

Farm workers

  • 67% of the farm workers surveyed were victims of wage theft in the last year (meaning they were not paid for their work or paid less than what they were owed)
  • 88% of the farm workers surveyed made $10,000 or less in agriculture in the last year
  • One-fifth of the farm workers reported having worked in a field in the last year where pesticides were being applied at the same time the workers were working

Dairy workers

  • 84% of the dairy worker surveyed work six or more days per week, with no right no overtime wages
  • Two-thirds of the dairy workers surveyed reported having been injured by either a bull or a cow and 77% reported that they have never received any type of safety training at any of the dairies for which they have worked in New Mexico
  • 93% of those workers who expressed an interest in complaining about poor working conditions did not do so out of fear of retaliation by their employers

Click to access the full report in English and in Spanish.

If you have questions about farm worker rights under these laws or are interested in a training, please contact María Martínez at maria@nmpovertylaw.org or (505) 255-2840.

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Wage Theft:

Wage theft is the unlawful failure to pay wages rightfully owed to a worker. This can include minimum wage violations, illegal deductions, forcing workers to work off the clock failure to pay overtime wages and failure to pay a worker all together. Wage theft has been on the rise during New Mexico’s economic crisis, especially among low-wage earners and immigrant workers. In a recent study conducted on the prevalence of wage theft within the New Mexican immigrant community, it was found that 22% of the respondents had experienced wage theft in our state.

When workers are victims of wage theft in our state they have a right to either file a wage claim at the New Mexico Department of Workforce Solutions or file a lawsuit against their employer for the unpaid wages. The Department of Workforce Solutions route does not require a worker to have a lawyer, which is why this is the preferable option for many low-income workers.

State law allows for workers to be paid triple times what they were originally owed in unpaid wages going back three years if they win their case. The Center on Law and Poverty is working to ensure that the process to file wage claims with the Department of Workforce Solutions be easily accessible to New Mexican workers and that these processes do not place any unnecessary barriers in front of workers wishing to file claims against employers who have violated the law.

  • Civil Rights Complaint Against the NM Department of Workforce Solutions
    The Center on Law and Poverty filed a complaint against the Department of Workforce Solutions with the U.S. Department of Labor’s Civil Rights Center. The complaint described discrimination in both the Unemployment Division and the Labor Relations Division (the department in charge of dealing with wage violations). In regard to the Labor Relations Division, the complaint describes discrimination on the basis of national origin based on the Division’s lack of meaningful access to its programs for individuals who have limited English proficiency. The Division only provides forms and correspondence (which contain critical information and deadlines) in English, despite the fact that 15% of New Mexicans come from households with limited proficiency in English. Because the Department of Workforce Solutions receives federal funding, the agency is prohibited from discrimination against people based on national origin, which includes language. The Civil Rights Center will investigate the complaint and we are optimistic that it will make recommendations for improvements in the agency’s policies around language access.

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Unemployment Benefits:

Unemployment benefits are available to workers who become unemployed through no fault of their own, and who meet certain eligibility requirements. The Unemployment Insurance (UI) Compensation Program in New Mexico is administered by the NM Department of Workforce Solutions.

In January of 2013 the Department of Workforce Solutions launched a new online unemployment claims system, costing the state $48 million and which has made it harder for unemployed New Mexicans to apply and receive unemployment benefits. Problems with the new online system include major delays in first-time payments to workers as well as a website which is cumbersome and difficult to use. Because claimants are informed that they must apply online on an English-only application, many people with disabilities, the elderly, those without access to computers and those with limited English proficiency are all confronted with substantial barriers to applying for unemployment benefits. We began an administrative advocacy campaign to shed light on the shortcomings of the system and to push for improvements when, in the Spring of 2013, it became clear that the new online system was failing New Mexican workers.

Updates

  • On August 14, 2013 the Center on Law and Poverty filed a Civil Rights Complaint against the Department of Workforce Solutions with the U.S. Department of Labor, on behalf of all New Mexican workers that suffer state imposed barriers to applying for and receiving the Unemployment. Read the press release: (English, Spanish).
  • On August 23, 2013 the Center on Law and Poverty wrote a letter to the Secretary of the U.S. Department of Labor, Thomas Perez, requesting that the federal agency address the Department of Workforce Solution’s issues with timeliness in getting payments out to unemployed, struggling workers.  In this letter we again highlighted the barriers workers face in utilizing the difficult-to-use online system.
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Video:

Uncovered: New Mexico’s Farm Workers

This project is funded, in part, by The Public Welfare Foundation, The Con Alma Health Foundation, The Center for Civic Values, The McCune Charitable Foundation, and The Joseph C. and Esther Foster Foundation.

Uncovered: New Mexico’s Farm Workers from Office Manager on Vimeo.

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