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.

Complaint Filed to Add Summary of Healthy Workforce Ordinance on 2016 Ballot

healthy-workforce-abq-logoToday, attorneys with the New Mexico Center on Law and Poverty filed a complaint for declaratory and injunctive relief requesting a court order to put the summary of the Healthy Workforce Ordinance on the 2016 general election ballot. The complaint named as defendants the City of Albuquerque and Bernalillo County. Both the City and the County failed to fulfill their legal obligations to send this question to the voters in November.

The summary of the Healthy Workforce Ordinance reads as follows:

Proposing to enact the Albuquerque Healthy Workforce Ordinance such that, beginning 90 days after enactment: First, Albuquerque employers must allow employees to accrue sick leave at the rate of one hour of leave per 30 hours worked. Second, employees may use sick leave for their own or a family member’s illness, injury, or medical care, or for absences related to domestic violence, sexual assault or stalking. Third, employers with 40 or more employees must allow each employee to use up to 56 hours of accrued sick leave each year, and employers with fewer than 40 employees must allow each employee to use up to 40 hours of accrued sick leave each year. Fourth, employers must notify employees of their rights and maintain records. The ordinance also provides for public enforcement, a private right of action, and liquidated damages and penalties for noncompliance or retaliation.

The complaint filed in the Second Judicial District Court is available here.

NM Supreme Court Rules that Exclusion of Farm and Ranch Laborers from Workers’ Compensation is Unconstitutional

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Santa Fe, NM – Today, the New Mexico Supreme Court ruled that the New Mexico Constitution prohibits the exclusion of farm and ranch laborers from the protections of the New Mexico Workers’ Compensation Act (Act). In holding for the workers who challenged the Act, the Court said that the exclusion of farm and ranch laborers “is nothing more than arbitrary discrimination and, as such, it is forbidden by our Constitution.” Opinion at 2.

In its review of the history and purpose of the Act, the Court concluded that “there is no unique characteristic that distinguishes injured farm and ranch laborers from other employees of agricultural employers, and such a distinction is not essential to the Act’s purposes.” Opinion at 15.

New Mexico’s farm and ranch laborers are among the poorest of the working poor in our state, and consequently they cannot afford private health insurance. Their work is also very hazardous. Farm and ranch laborers work with heavy machinery, unpredictable animals and encounter harsh environmental conditions. In fact, the parties to the case agreed that farm laborers engage in dangerous work. “[A]s the parties observed at oral argument, farm and ranch laborers are engaged in a risky profession where workplace accidents frequently result from inherently unpredictable working conditions.” Opinion at 43.

Reacting to the decision the New Mexico Center on Law and Poverty’s Legal Director Gail Evans remarked, “We are thrilled that New Mexico’s farm and ranch laborers have the same right to workers’ compensation as all other workers in our state.”

For more information contact: Gail Evans (505) 255-2840/(505) 463-5293 Elizabeth Wagoner (505) 255-2840 or Tim Davis (505) 255-2840

Download the full press release here.

Read the opinion from the NM Supreme Court here.

Job Announcement: New Mexico Worker Collaborative Coordinator

Position: Coordinator
Location: Albuquerque, Santa Fe, or Las Cruces, New Mexico
Type: Part-time, contract

New Mexico Worker Collaborative

The NMWC is a collaborative effort made up of six community and legal organizations throughout New Mexico that bring capacity and geographic breadth to further good policy and organizing, both grassroots and legal, to low-income workers throughout the state. Those groups include Organizing in the Land of Enchantment (OLÉ), Somos Un Pueblo Unido, El Centro de Igualdad y Derechos, Communities in Action & Faith (CAFé), NM Center on Law & Poverty, and Center for Civic Policy.

These organizations have won minimum wage increases, wage theft cases, and lawsuits that have expanded worker protections. Through the Collaborative, these organizations now intend to leverage the power they have built, as well as their experience and analysis of opportunities at hand, to further strengthen protections for workers.

To find out more about the organizations that make up the collaborative, visit: www.olenm.org, www.somosunpueblounido.org, www.elcentro.org, www.organizeNM.org, www.nmpovertylaw.org and www.civicpolicy.com.

Coordinator Position

The NMWC is seeking a highly-skilled, experienced, and dedicated Campaign Manager to manage the collaborative and help us make a greater collective impact on the health and well-being of low-wage workers in New Mexico. Although the collaborative’s policy and legal campaigns will be carried out through our existing organizations, the Campaign Manager will help the organizations coordinate their work, clarify organizational roles and responsibilities, learn from each other, document the impact of our work, and raise resources to expand our capacity in the years to come. The position will include policy analysis, fundraising, communications, strategic planning, pace-setting, and evaluation of the program.

Specific responsibilities include, but are not limited to:

  • providing leadership in strategic planning for NMWC activities, including convening and facilitating regular meetings of the NMWC,
  • creating and growing relationships between the NMWC and targeted community partners, including institutions and community-based organizations in the public and private sector,
  • compiling and maintaining collaboration contact roster and listserv that includes all partners’ contact information,
  • serving as the primary contact for the NMWC for community partners and the public,
  • providing periodic updates on activities to all partners,
  • participating in media and advocacy efforts highlighting the activities of the NMWC,
  • pursuing grant opportunities and coordination of proposal submissions,
  • overseeing centralized internal resource web system for training materials, calendar of events, referrals, media materials, and on-line resources,
  • fiscal oversight of grant(s),
  • working with partner organizations as the evaluator to realize the measurable and realistic short and long-term goals as well as benchmarks for the NMWC,
  • developing a Project Level Evaluation Plan using a formative evaluation process to provide feedback on project implementation. This includes assessment of project framework, partner engagement and monitoring of progress towards stated goals and objectives,
  • creating reporting systems and evaluation tools to measure collective impact,
  • ensuring that data collection systems are integrated to provide data for local and national partners, and
  • developing and disseminating reports to funding organizations and Steering Committee members.

Minimum Requirements

  • Proven track record running a campaign.
  • Experience with Voter Action Network (VAN).
  • Experience with fundraising from private foundations and individual donors.
  • Excellent management skills.
  • A strong commitment to social justice.
  • Background in community, labor or electoral organizing.
  • Ability to develop large-scale strategies as well as to develop, implement, and track day-to-day campaign activities.
  • Excellent oral and written communication skills
  • Experience working in diverse faith communities, communities of color, and low-income and working class communities.
  • Spanish language fluency a plus.
  • Reliable transportation required.

Compensation
This is a contract position, and hourly compensation will be determined based on experience. The position will require approximately 25 hours per week, which may fluctuate based on need.

Reporting Structure
This position will report to a steering committee of the six organizations’ executive directors. As a collaborative network of organizations working with a wide range of immigrant and ethnic communities, we strongly encourage applications from people of color.

Application Procedure
To apply, please email the documents below in PDF format to Melanie Aranda at maranda.ccp@gmail.com.

  • Your resume
  • A cover letter outlining your qualifications for this position
  • A list of 3 references, including telephone numbers and email addresses

If you have questions or need assistance with your application, contact Melanie Aranda at the email address above.

Deadline: Position open until filled. Interviews will begin immediately.

Employees file a class action lawsuit against Kelly’s Brew Pub and Restaurant for violating the Albuquerque Minimum Wage Ordinance

Kelly’s Brew Pub and Restaurant and its owners Dennis and Janice Bonfantine unlawfully helped themselves to their servers’ tips and didn’t pay servers for some of the time they worked, according to a lawsuit filed today in Albuquerque district court.

The class action complaint, filed on behalf of seven current and former employees, accuses the Bonfantines and Kelly’s of violating the Albuquerque Minimum Wage Ordinance (the Albuquerque MWO).

The lawsuit contends that after a November 2012 ballot initiative raised the Albuquerque minimum wage, Kelly’s and the Bonfantines “settled on an unlawful response to the minimum wage increase: servers would pay for it themselves, out of their tips. Starting in 2013, Defendants increased the wage rate that appeared on servers’ paychecks so that Defendants appeared to comply with the new law, but required servers to pay the house cash each shift, calculated at 2% of their total daily sales, plus $3.00 per hour they worked on the clock. After tipping out, servers sometimes owed more in cash than they had actually earned in cash tips during the shift. When this happened, servers were required to pay the difference from their wallets or their paychecks. When questioned about this ‘tip out’ policy, the Bonfantines and managers explained that Kelly’s needed the money to pay for the minimum wage increase and other business expenses.”

Furthermore, according to the lawsuit, “Kelly’s did not pay servers all of their customers’ credit card tips, and instead kept a portion of those tips for themselves. Kelly’s also did not pay servers any wages at all for non-tipped work they performed off-the-clock, such as rolling silverware, kitchen prep, and awaiting table assignments.”

The Albuquerque Minimum Wage Ordinance – which the voters approved in a November 2012 ballot initiative – prohibits these practices. The ordinance raised the minimum wage for tipped workers from $2.13 an hour to $3.83 an hour in 2013, and $5.25 per hour in 2014 and afterwards, with annual adjustments for the cost of living. Under the ordinance, tipped employees must be allowed to keep all of their tips, and employers cannot require employees to share their tips with the house or with management. The ordinance does not prohibit tip pooling among employees who receive tips, but by law management cannot participate in a tip pool. The ordinance also requires employers to pay employees the minimum wage for all hours worked, whether on the clock or off. Non-tipped employees are currently entitled to $8.75 per hour under the ordinance.

The plaintiffs are represented by attorneys at the New Mexico Center on Law and Poverty and Youtz & Valdez, P.C. The attorneys will seek to have the lawsuit certified as a class action to recover servers’ misappropriated tips, minimum wages, statutory liquidated damages, pre- and post-judgment interest, injunctive relief, costs and expenses of suit, and reasonable attorney’s fees

Elizabeth Wagoner, a staff attorney at the Center on Law and Poverty, stated, “A worker simply cannot live on two dollars an hour, especially when she can’t keep all of her tips and doesn’t get paid at all for some work time. This shouldn’t be happening anymore in Albuquerque, but the situation at Kelly’s shows that a strong minimum wage ordinance also needs strong enforcement. We applaud our partners at Youtz & Valdez for taking on this important case, and urge the Albuquerque City Attorney to engage in proactive enforcement efforts to root out other lawbreaking employers.”

Shane Youtz, a partner at Youtz & Valdez, P.C., stated, “Employers need to understand that there are real consequences to undercutting Albuquerque’s minimum wage law. Pay practices like Kelly’s simply aren’t lawful, and our firm has a long-standing commitment to fight for workers’ rights in cases like these.”

The case is Atyani et al v. Bonfantine et al in the Second Judicial District Court in Albuquerque, NM.

Click here to download a pdf copy of this press release.

Click here to download a pdf copy of the Complaint.

For more information, contact the Counsel for Plaintiffs:
Elizabeth Wagoner, NM Center on Law and Poverty (512) 663-9352 (mobile)
Shane Youtz, Youtz & Valdez, P.C. 505- 244-1200 (office)

Albuquerque Journal: NM high court hears case on workers’ comp for farm/ranch workers

Republished from the Albuquerque Journal. Click here to read the original article.

By Maggie Shepard / Journal Staff Writer
Thursday, April 28th, 2016 at 12:05am

On a small New Mexico dairy farm, an employee milking a cow does not have to be covered by workers’ compensation but the person’s supervisor, who might spend the workday in the same barn with the same animals, must be covered.

It’s a legal line that state Supreme Court justices hammered as they heard oral arguments Wednesday afternoon in a heated and possibly high-stakes case about a decades-old exemption in state law the allows farms and ranches with more than three employees to exempt laborers from workers’ compensation coverage.

A 2nd Judicial District Court judge and the Court of Appeals have ruled in one case that denying workers’ compensation to this type of farm and ranch worker is unconstitutional.

Dairy and ranch industry groups’ lawyers argued that forcing workers’ compensation coverage would cost farmers tens of millions of dollars, much of which they could not recoup from product sales, which usually are in markets that have government-set price controls.

When asked for the legal justification between the two groups of employees, like in the cow example, each of the industry lawyers arguing Wednesday struggled to find an answer that didn’t seem to anger the justices.

“It might save money by excluding certain workers, but is that a rational exclusion?” Chief Justice Charles Daniels asked the lead attorney representing the dairy and cattle industries.

Justices asked questions about how such an exemption could be considered constitutional.

Gail Evans, legal director for the New Mexico Center on Law and Poverty, argued that it is not and asked the justices to uphold a lower court’s ruling as such. She said those exempted are the “most vulnerable” employees.

She also asked that the justices make any unconstitutional judgment work retroactively.

But lawyers from the state’s Workers’ Compensation Administration and Uninsured Employer’s Fund argued that would open a flood gate of cases and a bureaucratic nightmare. They asked that if necessary, a ruling apply only to future claims to not only avoid a mess of back claims but also so that industry businesses can be fully aware of any new coverage requirement.

The coverage exemption also applies to household servants and real estate salespeople.

After more than two hours of arguments from five lawyers – oral arguments usually only last about one hour – before a packed and overflowing audience, justices took the case into consideration. It is not clear when they will make a decision.

Farmworkers’ paths

Kalyn Finnell, a graduate student at the University of New Mexico in Latin American studies, created a project that traces the places and spaces of farmworkers of the past and present in the United States. Ms. Finnell writes:

“The objective of this project is to record the history of the structural inequalities under which farm laborers in the United States work. The farmworkers in the United States are an underrepresented population to whom the general population of the Unites States owes its daily nourishment. The goal of this particular mapping project was to relate stories that had not been told, through places.”

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“The places recorded in this map include both sites of inequality and sites of empowerment. Some of those sites of empowerment include sites of protest, which demonstrate the active role that farm laborers themselves have played in obtaining workers’ rights. While places such as the New Mexico Center on Law and Poverty, Ben Archer Health Center and El Centro de los Trabajadores Agrícolas provide services for the empowerment of farmworkers, persisting inequalities must be highlighted for their recognition and eventual abolishment.”

The New Mexico Center on Law and Poverty is proud to be one of the places featured in her project. Check out Kalyn’s project at Tour Builder with Google Earth.