Sick Leave Ordinance Introduced at the Bernalillo County Commission

Low-wage workers, community leaders applaud first great step to building a stronger economy by ensuring our workers are healthy

Albuquerque, N.M.– During a packed meeting Tuesday night, the Bernalillo County Commission introduced a proposed paid sick leave ordinance for Bernalillo County —a step supporters of the ordinance say will support families succeed in building thriving communities.

Bernalillo County Commissioner Maggie Hart-Stebbins introduced the Bernalillo County Paid Sick Leave Ordinance as a way to alleviate the challenges working families face when forced to choose between losing a day’s pay or going to work sick because of the need to care for themselves or for their loved ones.

The proposed ordinance does the following:

  • The ordinance applies to any worker employed at least 56 hours per year at a business with two or more employees, the county, or a nonprofit with two or more employees in Bernalillo County.
  • It allows workers to accrue one hour of paid sick time for every 30 hours worked.
    • Employers are not required to provide more than a total of 56 hours per year.
    • Paid sick leave can be used starting on the 90th calendar day after they are hired.
    • Allows up to 56 hours of unused sick time carry over into the next year
  • Allows employers who currently have a PTO policy that exceeds the minimal requirements of this ordinance to continue with their current policy.

The following conditions exempt a business from providing paid sick leave:

  • Businesses or employers with only one employee
  • New business startups that obtain an exemption for their first year of business
  • And family-owned and operated businesses that employ only family members

“The introduction of a possible paid sick leave program in Bernalillo County makes sense because a strong economy begins with every worker in our community having the ability to care for their health and well being,” said Maggie Hart-Stebbins, Bernalillo County Commissioner. “Everyone gets sick and everyone should be able to take time to care for themselves or their families. Providing earned sick days protects the economic stability of working families and the public health across our community.”

According to a study by the University of New Mexico Bureau of Business and Economic Research, in the city of Albuquerque alone, 36% of private-sector workers have no paid sick leave and that 90% of those with household incomes less than $15,000 presently do not have paid sick leave.

The following are reactions from low-wage workers and community organizations from across bernalillo County who are in support of the ‘Paid Sick Leave’ ordinance:

“Family stability comes in a variety of ways: good public education, good paying jobs, and a support system to get us through unpredictable life moments, said Trae Buffin, member of OLÉ. “Paid Sick Leave is about putting our New Mexican families’ needs first and providing them the support they need to build thriving communities.”

“Unfortunately not every family or worker has a strong support system to go through sickness, family emergencies, or even protecting their own lives and those of their children,” said Mary Ann Maestas, Member, NM Working Families Party. “Today’s introduced proposal will alleviate this challenge by allowing workers to accrue paid time that can be used to care for those “life moments” while not losing a day pay or even their jobs.”

“Families shouldn’t have to worry about shattering their family budget and getting buried under healthcare costs because they can’t afford to lose a day’s pay,” said Hilda Gomez, low-wage worker and member of El CENTRO de Igualdad y Derechos. “Having paid sick leave ensures we take care of the most integral part of our state economy: OUR WORKERS! Because when our workers are ok, our economy is ok, and we increase our opportunity to make our state thrive.”

The proposed ‘paid sick leave’ ordinance is expected to be voted on June 25, 2019.

Court hearing on HSD compliance with orders to remove barriers to food and medical assistance next Thursday

LAS CRUCES—On Thursday at 10:30 a.m., in U.S. District Court in Las Cruces, Judge Kenneth Gonzales will hear an update on the New Mexico Human Services Department’s compliance with multiple court orders to remove barriers to food and medical assistance for eligible families.

At the hearing, the New Mexico Center on Law and Poverty will provide information about a statistically significant review of food and medical assistance cases conducted between September 2018 to February 2019. Both the court appointed Special Master and the plaintiffs, represented by the Center, found that New Mexicans are still not getting the food and medical assistance they need because HSD continues to violate the law.

According to an extensive review by the Center of HSD client cases, HSD made errors in 202 out of 288 cases—an error rate of 70%. These errors led to 109 households of the 288 cases reviewed losing food or medical assistance, sometimes both. The Special Master validated nearly all these findings. The review found that HSD continues to illegally deny food and medical assistance in the following ways:

  • HSD illegally denies food and medical assistance to families who fail to provide unnecessary paperwork.
  • HSD’s own quality assurance team failed to find the vast majority of the errors found by the Center and the Special Master.
  • HSD does not consistently apply eligibility policy and application procedures.
  • HSD does not accurately inform families about their eligibility and what is needed to process their case.
  • HSD’s management team lacks expertise to administer food and medical programs in accordance with federal law.
  • HSD’s IT system requires changes to accurately process applications for benefits.

In September 2016, Judge Gonzales held former HSD Secretary Brent Earnest in contempt for failing to remove barriers to assistance for eligible families. The court appointed a Special Master to monitor and make recommendations to the department. In April 2018, the judge set a series of deadlines for HSD compliance with court ordered reforms.

The New Mexico Center on Law and Poverty report on it’s case review can be found here: http://nmpovertylaw.org/nmclp-report-on-hsd-case-review-2019-02-25-redacted/

The Gonzales v. Earnest joint status report can be found here: http://nmpovertylaw.org/doc-873-joint-status-report-2019-05-01/

WHAT:
U.S District Court status conference on HSD compliance with court orders in Deborah Hatten Gonzales v. Brent Earnest, No. 88-385 KG/CG

WHEN:
Thursday, May 16, 2019 at 10:30 a.m.

WHERE:
United States Courthouse
4th Floor, North Tower, Mimbres Courtroom
100 N. Church Street
Las Cruces, New Mexico 88001

WHO:
New Mexico Center on Law and Poverty attorneys
Court Appointed Special Master Lawrence M. Parker
HSD Secretary and Attorneys

Court must ensure NM kids’ right to sufficient education

By Gail Evans, Lead Attorney for plantiffs, Yazzie v. State of New Mexico
(This article appeared in the Albuquerque Journal.)

Our courts have the critical role of upholding the constitutional rights of our children. New Mexico’s Constitution guarantees children a sufficient education, one that prepares them for the rigors of college and the workforce. But for decades, our state has failed our students.

Our public education system is woefully insufficient, leading a district court to rule last July that the state is violating the constitutional rights of our students. After volumes of evidence and testimony from dozens of experts, the court found the state has not adequately invested in public education nor adopted the educational instruction and programs constitutionally required to close achievement gaps for N.M. students, especially low-income, Native American, English-language learners and students with disabilities.

The legislative process is a political one fraught with competing interests. For years, our children have been shortchanged by legislative budgets that have consistently underfunded public schools. Unfortunately, even after the court’s ruling, the Legislature this year only went part of the way in addressing the changes necessary.

While the funding allocated for public schools is higher than in recent years, it won’t even get us back to 2008 levels when adjusted for inflation. Like today, in 2008, our funding was insufficient and our state’s education outcomes ranked at or near the bottom nationally. Filling a hole that gets us back to 2008 levels of funding is not the investment in education our Constitution requires.

The increased funding will not be sufficient to ensure social services, counseling, health care and literacy specialists are available to all students who need them. It is not enough to cover basic instructional materials for the classroom, or to invest in our educators to attract and retain new teachers and expand their qualifications. It is not enough to ensure teaching is tailored to the unique cultural and linguistic needs of our students, including English-language learners and indigenous communities. And the transportation budget remains insufficient to ensure all students have the opportunity to participate in after-school and summer programs.

While the governor’s call for a “moonshot for education” is certainly the kind of vision we need, a moonshot requires sufficient investment of programs, services, time and money that we have yet to commit.

While it is encouraging our new governor will not appeal the Yazzie/Martinez ruling, she has now called for the court to vacate sections of the ruling. This will only further endanger our students’ life chances. The state should instead work to comply with the ruling and the Constitution; the future success of our children and New Mexico depends on it. Children should not be pawns in the political process. It is the role of the judicial branch to interpret and enforce the law. The court ruling requires us to act, mandating that we do better by our students. Our children are smart and capable, and rich in culture and diversity. We can provide an education system that serves all New Mexicans, regardless of their economic circumstances or cultural background.

I dream of a moonshot for education, too

By Wilhelmina Yazzie, lead plaintiff in the Yazzie/Martinez v. New Mexico lawsuit.
(This op-ed appeared in the Santa Fe New Mexican)

When it comes to providing a quality education for every child in New Mexico, the stakes are too high for the “wait and see” approach the Santa Fe New Mexican takes in its recent editorial (“Educators must take the lead in reforms,” Our View, March 24).

Gov. Michelle Lujan Grisham has said she wants a “moonshot for education.” As the lead plaintiff in the Yazzie/Martinez v. state of New Mexico lawsuit, I, too, dream of a moonshot for my children and for all of New Mexico’s children. I am of the Diné (Navajo) tribe and we view our children as “sacred.” They are the heart of our existence, and it is our responsibility to prepare them for iiná, what we call “life” in my language.

Our state constitution mandates that the state of New Mexico is responsible for providing a sufficient education for all students. The state has not followed through on its obligation, and in her court ruling on our lawsuit, Judge Sarah Singleton agreed.

The Legislature had a chance this session to change course, but it did not go nearly far enough. The funding increases for public education passed in this legislative session only serve to backfill budgets and do not even return basic school programming to 2008 levels. They will not adequately cover the critical programs needed to improve outcomes for all students — especially for our Native American children, our Latino/Hispanic children, our English language learners, our low-income children and our children with special needs.

My children’s schools do not have enough textbooks. Our teachers do not have basic classroom supplies. When it comes to testing, my children do not score at grade level, despite getting good grades and being on honor roll. My children do not receive enough academic support and resources to get them ready for these tests, and they have to pass these tests to graduate. Our schools have limited after-school programs and tutoring.

Our schools also lack one of the most important teachings for our youth — cultural and language education. It is imperative that we bring culturally relevant programs and resources into our schools, especially at a time like this. Our children are yearning for their identity and values, and others are searching for acceptance.

Being culturally connected to our language and culture help us find purpose and guidance; it gives us confidence and motivation to excel in all that we do. It also teaches our children our way of life and the meaning of our existence, gives us pride in who we are and where we come from. It also teaches non-Native children and educators our history and with that knowledge brings respect for one another and creates hózhó (peace) between all people that we interact with. That is the path to balance and harmony.

I am asking our state and our lawmakers to address all these issues; to act upon the court’s ruling and honor the constitutional rights of our students. We need pre-K for every student. We need more multilingual teachers, and they deserve better pay. All classrooms should have access to textbooks, technology and other basic resources. Our children should be our first priority. They are the next generation, and all I want is for my children, your children, our children to receive the quality education that they deserve.

To transform our public education system, it will take the dedication and cooperation of every member of our community— from tribal leaders to educators and experts to parents. We need everyone at the table if we are to succeed at what is most important to us: helping our children realize their dreams.

Legislative Wrap Up 2019

Dear friends,

This legislative session was a turning point for New Mexico. The efforts of the Center on Law and Poverty and our partners paved the way for historic changes for our state and started long overdue dialogue about the bold changes that must be made for children and families. This could not have happened without you! THANK YOU for the countless phone calls, emails to your legislators, testimony in committee hearings, and sharing of information with your networks and through social media.

We have much to celebrate together and are especially proud to share several major victories.

Our advocacy efforts and expert testimony were instrumental in achieving:

Historic wins for workers in New Mexico
Domestic and home care workers are now protected by basic labor laws. Along with our partners, we successfully eliminated outdated, discriminatory practices in our state so people doing some of the toughest jobs, like caring for others’ loved ones and cleaning houses, are protected by New Mexico’s minimum wage standards and other wage protections.

After a decade of stagnant wages, hard working New Mexicans will finally get a raise. Hundreds of workers from across New Mexico mobilized in support of a wage increase this session. It was a long and challenging fight, but starting in January 2020, the state minimum wage will be raised to $9 an hour and increase annually until reaching $12 an hour in 2023. This will directly impact 150,901 workers in our state—nearly 20 percent of the workforce.

Loopholes closed in small loans laws
Everyone should be able to understand the terms of their loans, especially when these loans are taken out from storefront lenders. Our advocacy with our partners led to significantly more accountability and transparency by mandating that lenders report relevant data to the state and by aligning our small loan laws so all New Mexico families receive fairer loans.

Public education a top priority
After winning the Yazzie/Martinez court ruling on behalf of families and school districts, we joined with education, tribal and community leaders, and students to form the Transform Education NM coalition and used this historic opportunity to bring education to the forefront this legislative session. New Mexico’s education system must be rooted in a multicultural framework for our diverse student body, and our coalition won much needed funding for culturally and linguistically responsive instruction in rural areas. Overall, New Mexico saw an increase in education funding, and teachers got long overdue raises. However, we still have a long way to go, and we will not stop until every child has the education they need to succeed and are entitled to by the New Mexico Constitution. 

Progress toward innovative and affordable health coverage
Dozens of families, healthcare professionals, and advocates joined the NM Together for Healthcare campaign to work tirelessly for a Medicaid Buy-in option for New Mexicans who struggle to afford the outrageous costs of private insurance but don’t qualify for Medicaid. The Human Services Department will now receive funding to further study and begin the administrative development of a public option plan, including pursuing federal funding to help pay for it.

The path ahead
We’re focused on New Mexico’s future, and together with you, we will continue to push for complete transformation of our education system, expansion of early childhood education—including pre-K, childcare assistance and home visiting services—better pay and working conditions for workers, financial and food security, and access to healthcare for all of our families.

Sincerely,

Sireesha Manne                                                  
Executive Director

Healthy Workforce ABQ to Continue Fight for Workers’ Right to Earn Paid Sick Leave 

ALBUQUERQUE, NM – Healthy Workforce ABQ, the campaign behind the proposed ordinance for earned sick days, vowed today to continue its fight to ensure that all workers have access to earned paid sick leave, after unofficial election returns showed a narrow margin of 718 more votes against the ordinance.

“No one should have to choose between a paycheck and their health or taking care of a sick child,”said Andrea Serrano, Executive Director of OLE. “Throughout this campaign, we talked with workers, families, and small business owners who agreed Albuquerque workers need the right to earn sick days. But this ordinance faced great odds. Well-connected business interests undertook a campaign of misinformation that confused both the press and voters about the provisions of the law. The measure was relegated to the back of the ballot, without a summary, in illegible seven point font that many people could not read. This election doesn’t change the fact that everyone agrees Albuquerque workers should have the basic right to earn sick leave. We will continue to fight for it.”

Local community organizations have been working tirelessly to educate the public on the earned sick leave initiative since last summer, when over 24,000 voters in Albuquerque signed the petition to get it on the ballot.

“I have never had earned paid sick days. I have a child with autism, and many times I have had to choose between taking him to his medical appointments or not receiving a day’s worth of pay,” said Edgar Salinas, a low-wage immigrant worker and an active member of EL CENTRO de Igualdad y Derechos. “My situation is not unique. Tens of thousands of workers are taking care of children and elderly parents. It is reprehensible that well-funded groups, driven by ideology instead of sound policy, choose to undermine working families’ ability to care for one another rather than strengthen and support the workers who are a cornerstone of the economy. We, Albuquerque’s working families, will continue to fight for our rights to support our families and strengthen Albuquerque. La lucha sigue!”

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Healthy Workforce ABQ is supported by Organizers in the Land of Enchantment (OLE), Strong Families New Mexico, El CENTRO de Igualdad y Derechos, New Mexico Working Families Party, the New Mexico Center on Law and Poverty, the Center for Civic Policy, and Southwest Organizing Project (SWOP).

Community Organizations Ask Court to Protect Minimum Wage and Paid Sick Ballot Initiative

By Elizabeth Wagoner, Supervising Attorney for Workers’ Rights

NMCLP Staff Attorney Tim Davis speaks at the May 4 press conference. Photo Credit: OLÉ

On May 4, 2017, several community organizations filed motions to intervene and motions to dismiss in a lawsuit that corporate and industry groups filed to attempt to overturn the Albuquerque Minimum Wage Ordinance (MWO) and keep the Albuquerque Healthy Workforce Ordinance off the 2017 ballot. The New Mexico Center on Law and Poverty represents the intervenors in this case.

The increases to the Albuquerque minimum wage passed in 2012 with the overwhelming support of Albuquerque voters. Now, almost five years later, corporate business interests seek to undercut the democratic process and invalidate the Albuquerque Minimum Wage, cutting the wages of hard working people across Albuquerque by $1.30 – from $8.80 per hour to $7.50 per hour. The corporate interests’ legal challenge to the Healthy Workforce Ordinance ballot initiative is a similarly undemocratic effort by corporations to keep Albuquerque voters, as is their right, from deciding whether workers should have the right to earn sick leave to recover from illness or care for ill family members. The corporate plaintiffs in the lawsuit do not stop there, however. They also ask this Court to take away the voters’ democratic right to propose and vote on ballot initiatives ever again.

The community organizations that fought successfully to put these important workplace rights on the ballot are now fighting once again to protect these laws. The first Motion to Dismiss asks the court to dismiss all of the challenges to the Albuquerque Minimum Wage Ordinance, and a second Motion to Dismiss asks the court to dismiss the Healthy Workforce Ordinance challenges. Both motions argue that the industry claims are flimsy, without merit, and are wholly without respect for the democratic process.

Find the motions to dismiss here and here.

Find the motions to intervene here and here.

Lawsuit Alleging DWS Fails to Enforce Wage Protection Laws Goes Forward

SANTA FE – Today, New Mexico’s First Judicial Court ruled that a lawsuit charging that Department of Workforce Solutions (DWS) must enforce state laws protecting working people against wage theft from their employers can go forward. Today’s ruling denies DWS’s request to dismiss the lawsuit. The individuals and groups who filed the case will request a final ruling from the court this summer.

Wage theft is the illegal practice of not paying workers for all of their work, including violating minimum wage laws, not paying overtime, and forcing people to work off the clock.

The lawsuit, Olivas v. Bussey, was filed in January 2017 by four workers who were victims of wage theft and workers’ rights organizations El Centro de Igualdad y Derechos, New Mexico Comunidades en Accion y de Fé (CAFÉ), Organizers in the Land of Enchantment (OLÉ), and Somos Un Pueblo Unido. Elizabeth Wagoner of the New Mexico Center on Law and Poverty (the Center) is lead counsel on a legal team that includes the Center’s Gail Evans and Tim Davis, Santa Fe attorney Daniel Yohalem, and Gabriela Ibañez Guzmán of Somos Un Pueblo Unido.

“Our government should be working with us, not against us, to hold unscrupulous employers accountable when wages are stolen and our rights trampled on,” said Ibañez Guzmán. “This administration has long ignored the conditions of struggling workers in New Mexico, but our families are pushing back. It’s important that this case is moving forward so wage theft victims can be heard and the department’s disregard for the law exposed.”

“This ruling reaffirms that every hard working New Mexican – not just those with the money to hire lawyers–deserves to be paid for every hour they work,” said Wagoner. “Our state government cannot turn a blind eye when employers break laws protecting working people.”

New Mexico has some of the strongest wage enforcement laws in the country. In 2009, the legislature made them even stronger. However, DWS illegally refused to enforce these new laws and imposed onerous and arbitrary internal policies that have enabled unscrupulous employers to get away with wage theft unchecked.

“DWS’s failure to enforce New Mexico’s wage and hour laws is one more example of how hard working New Mexicans are getting the short end of the stick in our state—but they are fighting back. This case is too important to dismiss, particularly given the profound impact wage theft has on New Mexican working families. We applaud the ruling and look forward to continuing to expose systemic failures by DWS to enforce New Mexico wage and hour laws, “said Marco Nuñez, workers’ justice coordinator at El CENTRO de Igualdad y Derechos.

A copy of the ruling can be found here.

 Background on the lawsuit:

New Mexico’s state-level protections against wage theft include: (1) Mandatory statutory damages to victims of wage theft, calculated as full back wages, plus interest, plus double damages; (2) At least a three-year statute of limitations, or longer when the violation is part of a “continuing course of conduct”; (3) A minimum wage of $7.50 and overtime pay for hours over 40 at one-and-one-half times the employee’s regular hourly rate; (4) the department must investigate and take legal action on valid and enforceable claims filed by workers who cannot afford private attorneys.

The lawsuit charges that DWS has:

▪       illegally imposed a $10,000 cap on wage theft: they do not investigate or take any enforcement action on wage claims worth $10,000 or more.

▪       imposed an illegal one-year time limit on liability for wage theft: they do not investigate or take any enforcement action on claims for back pay that go back more than one year from the date an employee files a claim, despite the N.M. Legislature’s 2009 decision to lengthen the statute of limitations for wage claims to at least three years.

▪       illegally imposed a policy against holding employers liable for any statutory damages at the administrative enforcement phase of a case, thereby eliminating the financial deterrent for engaging in wage theft, despite the Legislature’s 2009 decision to double the penalty for engaging in wage theft.

▪       adopted policies and procedures that require the permanent closure of wage claims for procedural reasons, such as when a claimant misses a 10-day deadline, without regard to the strength of the claim or whether the claimant received notice of the deadline.

The lawsuit seeks an order that the Department of Workforce Solutions must stop applying these unlawful policies, as well as an order that the Department must re-open and investigate cases impacted by these policies.

The defendants in the lawsuit are the Department of Workforce Solutions, Cabinet Secretary Celina Bussey, and Labor Relations Division Director Jason Dean.

In January, 2017, the First Judicial District Court issued a temporary restraining order requiring the Department of Workforce Solutions to accept wage claims without regard to the Department’s illegal $10,000 cap or illegal one-year lookback period and to keep records of claims impacted by these policies.

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Editorial: Shortchanging the Poor

Republished from the Las Vegas Optic. See the original column here.

Tuesday, July 19, 2016 at 6:30 pm (Updated: July 19, 6:42 pm)

U.S. Magistrate Judge Carmen Garza has concluded that the New Mexico Human Services Department should have someone looking over its shoulder to help ensure that it complies with court orders and federal law in the administration of federally funded benefits.

According to The Associated Press, Garza is also recommending a contempt finding against the agency, which oversees the distribution of federal food aid and Medicaid health care benefits to the poor.

To be sure, those are merely proposals at this point; the department has 14 days to file its objections, and the department is already saying that it doesn’t agree with everything in the judge’s decision.

Still, it’s unfortunate — though not surprising — that such extreme measures are necessary to get the department to follow the law and to finally comply with court orders that have gone unfulfilled.

The harsh measures being recommended are not surprising because of the striking testimony presented during the court proceedings in the case.

“Caseworkers’ sworn testimony that they were instructed by managers to fraudulently alter applicant information has essentially not been refuted,” Garza said. According to The Associated Press, Garza also noted that managers overseeing supplemental nutrition benefits invoked their Fifth Amendment right against self-incrimination during the proceedings.

The Human Services Department’s office of inspector general and the U.S. Department of Agriculture are investigating that part of the case.

We don’t doubt that the state Human Services Department has a difficult job with tight deadlines and large caseloads.

But it’s also important to remember that the agency exists to serve as a safety net for our state’s most vulnerable residents.

The aid this agency provides helps our state’s poor put food on the table for their families and get medical care for them. Playing games with that aid is unconscionable and wrong.

If it takes a special master looking over the agency’s shoulder to force it to do the right thing, then so be it.

According to The Associated Press, the special master would have expertise in determining eligibility for Medicaid and food aid. That individual would also be knowledgeable with the organizational and computer systems used to manage the state’s caseload.

The New Mexico Center on Law and Poverty, which brought forth the federal lawsuit on behalf of aid beneficiaries, was pleased with Garza’s decision, which was issued Monday.

“The things we have been asking for are very simple,” attorney Sovereign Hager told AP. “Train your workers on what the law requires, make sure the IT system does what it’s supposed to, make sure notices are intelligible and make sense.”

That seems reasonable to us.