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).

Court Rejects Challenge to Earned Sick Leave Law

Ruling Ensures Healthy Workforce Ordinance Will Appear on October 3 Municipal Ballot

 

ALBUQUERQUE, NM — Today, in a victory for Albuquerque’s working families, Honorable Judge Shannon Bacon threw out a challenge by business lobbyists to the Albuquerque Healthy Workforce Ordinance. Today’s ruling ensures that voters will have an opportunity to vote on earned sick days this fall at the October 3, 2017 municipal election.

“Low wage and immigrant workers play a critical role in Albuquerque’s economy, yet they are disproportionately impacted by attacks on minimum wage and efforts to undermine the proposed paid sick leave ordinance,” said Marco Nunez, Worker Justice Coordinator, EL CENTRO de Igualdad y Derechos.  “This victory sends a clear message to corporate interests that prioritize profit over the well-being of our families that our communities will not stand by idly as they attack and chip away at workers’ rights.”

Judge Bacon also upheld voters’ right to vote on citizen-initiated ballot initiatives, rejecting the business interests’ attempt to strike the voters’ democratic rights from the Albuquerque City Charter.

“Albuquerque residents’ right to directly participate in the lawmaking process is a cornerstone of our local democracy,” said Tim Davis, an attorney with the New Mexico Center in Law and Poverty, who argued the case for the community organizations. “Today’s ruling protects this right from attacks by well-connected business interests.”

The ruling arose out of a lawsuit filed against the city by business lobbyists who wanted to remove the earned sick ordinance from the October 2017 ballot. They also sought to cut the minimum wage, which was overwhelmingly passed by voters in 2012, from $8.80 to $7.50. Community organizations and voters who support both laws intervened in the case to defend them.

The judge also tossed out the challenge to the Albuquerque minimum wage in an oral ruling from the bench yesterday, ruling that the results of the 2012 general election are final and cannot be challenged now. She issued a written opinion today reaffirming her oral ruling. Together with her ruling on the Healthy Workforce Ordinance, today’s rulings dismiss all claims in the lawsuit on both ordinances.

The earned sick leave ballot initiative, if passed, would give workers the right to earn sick leave to recover from illness or care for ill family members. Local community organizations have been working to educate the public on the earned sick leave initiative since last summer, when over 24,000 voters in Albuquerque signed the petition in support of it.

The Healthy Workforce ABQ Ordinance can be read online here: https://healthyworkforceabq.org/full-language-of-ordinance/

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Court Upholds Albuquerque Minimum Wage Law

ALBUQUERQUE, NM — Honorable Judge Shannon Bacon threw out a challenge to the Albuquerque Minimum Wage Ordinance today, ruling that the results of the 2012 general election are final and cannot be challenged now.

“It’s astonishing and disheartening that business groups were trying to cut hard working New Mexicans’ wages by nearly $3,000 a year,” said Trae Buffin who is a member of OLÉ. “I’m overjoyed that the court agreed with the people and that the minimum wage is safe in Albuquerque.”

The ruling arose out of a lawsuit filed against the city by business lobbyists attempting to end minimum wage, which was overwhelmingly passed by voters in 2012, and to remove the earned sick days ordinance from the October 2017 ballot. Community organizations and voters who support the law intervened in the case to defend the ordinance.

The earned sick leave ballot initiative, if passed, would give workers the right to earn sick leave to recover from illness or care for ill family members. Local community organizations have been working to educate the public on the earned sick leave initiative since last summer, when over 24,000 voters in Albuquerque signed the petition in support of it.

Judge Bacon has not yet ruled on the earned sick days initiative, but indicated at the hearing that she would do so soon.

The Healthy Workforce ABQ Ordinance can be read online here: https://healthyworkforceabq.org/full-language-of-ordinance/

 

 

Judge Rejects Challenge to Albuquerque Minimum Wage Ordinance

District Court Rules against Kelly’s Brewpub in Wage Theft Case

ALBUQUERQUE— On May 30, 2017, Second Judicial District Court Judge Alan Malott rejected a legal challenge to Albuquerque’s Minimum Wage Ordinance, denying a motion to dismiss a minimum wage case, Atyani et al. v. Bonfantine et al., No. D-202-CV-2016-2775, filed by employees of Kelly’s Brewpub against the former owners of the restaurant, Dennis and Janice Bonfantine.

The Bonfantines’ former employees have alleged that Kelly’s illegally required workers to kick back three dollars per hour from their tips after the tipped minimum wage officially increased in Albuquerque from $2.13 per hour to approximately $5.16 per hour. To defend against these claims, the Bonfantines argued that the Albuquerque minimum wage was invalid because it was increased through a voter initiative that put a summary of the wage increase on the 2012 ballot rather than the entire ordinance. Judge Malott rejected this argument, ruling that any challenge to how the 2012 election was conducted should have been made right after the election.

“Thousands of hard-working families can breathe easier now, knowing that the minimum wage in Albuquerque isn’t going to be slashed,” said Bianca Garcia, a plaintiff in the case. “The Bonfantines should be ashamed of themselves, not only for their violations of the minimum wage ordinance, but also for trying to eliminate the Albuquerque minimum wage altogether just to avoid paying back the money they took from us. We thank the court for seeing through this bogus defense.”

Judge Malott also rejected the Bonfantines’ argument that the Albuquerque minimum wage ordinance was invalid because it “logrolled” multiple issues into one question presented to voters. Malott ruled that “logrolling” is not an issue in municipal ballot measures.

“For years, the former owners of Kelly’s took hard-earned money out of their employees’ pockets, violating Albuquerque’s minimum wage ordinance that was overwhelmingly passed by city voters in 2012,” said Elizabeth Wagoner an attorney on the case from the New Mexico Center on Law and Poverty (the Center). “We’re looking forward to moving forward in this case. The Bonfantines’ employees deserve to collect every dollar they worked for and are owed.”

A similar case, Association of Commerce and Industry et al. v. City of Albuquerque et al., No. D-202-CV-2017-02314, filed in April by a group of business organizations, also asks the courts to invalidate the Albuquerque Minimum Wage Ordinance. That case, which is currently pending before Second Judicial District Court Judge Shannon Bacon, raises many of the same arguments that Judge Malott rejected in the May 30 Atyani v. Bonfantine decision.

Atyani v. Bonfantine is set to go to trial in summer 2018. Attorneys on the case are Wagoner and Tim Davis of the Center, and Shane Youtz and James Montalbano of Youtz & Valdez, P.C.

A copy of Judge Malott’s order can be found here.

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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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ACTION ALERT: Call Governor Now to Prevent Budget Cuts

Your action is needed urgently –   the House and Senate just sent a tax package today to Governor Martinez to help avert more deep budget cuts that would further slash funding for our schools, healthcare and public safety agencies. New Mexico is facing school closures and further reduction to classrooms and teachers, the elimination of certain Medicaid services for low-income families and people with disabilities, and a worsening public safety crisis from under-resourcing our courts and other key agencies.

House Bill 202 makes responsible and overdue changes to the tax code, including to level the playing field for small businesses by taxing out of state internet sellers, close up tax loopholes for certain industries, and update the gas tax so the funds can be invested into our roads.

Please call the Governor’s office at 505-476-2200. Ask her to sign HB202, and not to veto any part of it. Let her know that New Mexicans will not accept more budget cuts and that you support this tax package as a fair solution that does not hurt our families.  It will only take a minute to leave a message.

Wage Theft Lawsuit Filed Against NM Department of Workforce Solutions

NMCLP took the fight against wage theft to the courtroom today with a lawsuit against the NM Department of Workforce Solutions.

The lawsuit was filed by four workers who were victims of wage theft and workers’ rights organizations El Centro de Igualdad y Derechos, NM 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 (NMCLP) is lead counsel on a legal team that includes NMCLP’s Gail Evans, Tim Davis, Santa Fe attorney Daniel Yohalem and Gabriela Ibañez Guzmán of Somos Un Pueblo Unido.

Read the filed complaint HERE.

JUST IN: Judge Signs Temporary Restraining Order on Printing of November Ballot

District Judge Alan Malott signed a Temporary Restraining Order this afternoon preventing the Clerk of Bernalillo County from printing ballots for the November 8, 2016 general election without a summary of the Healthy Workforce Ordinance until further Order from his court. A hearing on this matter will take place on Monday, September 12, 2016 at 4:00 p.m.

The Temporary Restraining Order can be found here.