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

workers' rights option 1

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.

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.”

farmworker cropped 2

“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.

Their Day in Court: Obtaining Justice for New Mexico’s Poorest Workers

Republished with permission by the Impact Fund. To see the original article, follow: http://impactfund.org/their-day-in-court-obtaining-justice-for-new-mexicos-poorest-workers/

Gail By Gail Evans, Legal Director of the New Mexico Center on Law & Poverty

Robert was attacked by a bull while working at the dairy where he had been employed for seven years. His injuries left him permanently disabled. He had no health insurance and no workers’ compensation. In almost constant pain, he could not work. Although his wife began working three jobs, they still lost their home. Two years later, the strain broke up their family. Robert became homeless and estranged from his children.

Robert’s story (and we’ve changed his name to preserve his privacy) is a typical one for many of New Mexico’s agricultural laborers – some of the hardest working and poorest workers in the country – working 10 to 14 hours a day, six or seven days a week, at dangerous jobs for very low pay. New Mexico’s field laborers earn a meager average of only $8,978 a year—much less than the national average of $17,500 to $19,999. In addition, roughly one-fifth of all agricultural workers are injured, become sick, or die from work-related accidents, pesticide exposure, dehydration, or other incidents at work.

Until recently, New Mexico’s impoverished farm, ranch and dairy workers were left without any resources to help them recover from illnesses or injuries sustained while working. This is because agriculture was the only industry excluded from the protections of the New Mexico Workers’ Compensation Act.

This exclusion caused overwhelming misery and suffering. Without the basic protections of the workers’ compensation system, injured agricultural workers, like Robert, and their families frequently sank even deeper into hunger and poverty.
Inspired by stories like Robert’s, the NM Center on Law and Poverty set out to end the statutory exclusion of agricultural laborers from the New Mexico Workers’ Compensation Act. With the support of the Impact Fund and other private foundations, the Center filed an equal protection lawsuit in New Mexico District Court in 2009. After two years of litigation, we won a ruling that excluding agricultural laborers from mandatory workers’ compensation coverage, when other employees have the right to coverage, is a violation of the equal protection clause of the New Mexico Constitution.

Even after we won our lawsuit, the New Mexico Workers’ Compensation Administration continued to rely on the unconstitutional exclusion to dismiss the workers’ compensation claims of injured farm and dairy workers. We appealed those cases, and in June of 2015, the NM Court of Appeals issued a unanimous decision that the exclusion of farm and ranch laborers from workers’ compensation is not “rationally related to a legitimate state interest,” and is, therefore, unconstitutional.

The New Mexico Supreme Court recently accepted the case, and we are preparing for our day in court.

In 2009, the Impact Fund made a grant of $12,500 to New Mexico Center on Law and Poverty so that the case, Griego v. New Mexico Workers’ Compensation Administration could move forward.

The Impact Fund awards grants to nonprofit legal organizations, private attorneys, and small law firms who seek to advance justice in the areas of civil and human rights, environmental justice, and poverty law by funding public interest litigation that will potentially benefit a large number of people, lead to significant law reform, or raise public consciousness. For more information visit: www.impactfund.org.

Court of Appeals Strikes Down Exclusion of Farmworkers from Workers’ Compensation

A new day dawns for agricultural workers in New Mexico! The state Court of Appeals just issued a decision that excluding farm and ranch workers from the Workers’ Compensation Act violates the equal protection clause of the state constitution.

The New Mexico Center on Law and Poverty has been fighting for this decision since filing our original lawsuit in District Court in 2009. Although we previously won a positive ruling from the District Court Judge, the case has been in appeal for years. Now, the New Mexico Workers’ Compensation Administration has stated that they intend to fully enforce the decision by requiring employers to provide coverage for farm and ranch laborers.

This is a huge victory for protecting the health, safety and economic security of New Mexico’s most hardworking and underpaid laborers.

Read the Press Release here: Press-release-Court-of-Appeals-strikes-down-exclusion-2015-06-25.
Read the Court’s Opinion here: Opinion-Court-of-Appeals-2015-06-22.