Bernalillo County paid leave law goes into effect       

ALBUQUERQUE, NM—An ordinance requiring employers in the unincorporated areas of Bernalillo County to provide workers paid leave goes into effect today. The law will help alleviate the serious challenges many workers face when forced to choose between a paycheck and the health of their families and community. 

Its implementation comes late for many working families who have needed paid time off to keep themselves and the community healthy before and during the ongoing pandemic. 

Bernalillo County’s Employee Wellness Act applies to any worker in the unincorporated areas of the county employed at least 56 hours per year by an employer with two or more employees. Workers can earn up to 28 hours of paid time off per year. Employees of larger employers will eventually be able to earn up to 56 hours of paid leave per year. The ordinance phases those additional hours in over the next two years.

The Bernalillo County Commission passed the ordinance in August 2019 after hours of public comment by workers and community members. The Commission delayed its implementation until today.

Details on the ordinance can be found here: http://nmpovertylaw.org/factsheet-bernco-pto-ordinance-09-30-2020/

The following are reactions from workers and workers’ rights advocates.

Marian Méndez Cera, El CENTRO de Igualdad y Derechos Worker Rights Organizer
“Low-wage and immigrant workers have been working through the pandemic and kept our community running. By having paid time off, we are taking care of the most integral part of our economy, our workers. As we collectively face these challenges, it has become clear how interconnected we all are and it has shown that all workers are essential. Therefore, not only should paid sick leave be a fundamental human right so no worker has to make the decision of missing a day’s pay to tend to their health, but it should be part of our state’s public health plan to curb the spread of COVID-19.”

Eric Griego, NM Working Families State Director 
“During this difficult time when essential workers are struggling to survive and stay healthy, we hope our state and local leaders take their lead from the people on the front lines, not corporate lobbyists. The county ordinance provides minimal leave to those risking their own health to keep our economy going, and the current law should be improved, not delayed or diminished.”

Andrea Serrano, Organizers in the Land of Enchantment (OLÉ) Executive Director 
“We are happy that the County Commission has chosen not to further delay the implementation of the Bernalillo County paid time off ordinance. This ordinance will provide some relief for workers, however, this bill only covers the unincorporated parts of Bernalillo County, leaving out the majority of the population in the metropolitan area. The reality is all workers need paid sick leave—especially now. COVID-19 has hit our communities of color hard and Bernalillo County’s hardworking families need and deserve paid sick leave.The City of Albuquerque and the State of New Mexico need to step up and focus on a strong paid sick leave bill that will incorporate every worker, not just the few.”

Stephanie Welch, New Mexico Center on Law and Poverty Workers’ Rights Director
“No one should have to choose between a paycheck and their health and safety. The Bernalillo County ordinance guarantees some paid time off for some workers. This is a start. All New Mexicans need the security of knowing they can take time off from work to care for themselves or their families and still get paid.”

Former owners of Kellys Brew Pub to pay servers $1,375,000 to settle wage theft lawsuit

ALBUQUERQUE—After a public hearing today, a court approved a class action settlement agreement that requires the former owners of Kellys Brew Pub and Restaurant to pay servers over a million dollars. Second Judicial District Court Judge Benjamin Chavez approved the settlement. 

The judge ruled in July 2019 that the former owners of Kellys violated Albuquerque’s minimum wage ordinance.

The former owners will pay one million of the agreed upon amount within 30 days. All parties agreed to additional time for the former owners to pay the remaining $375,000 and for the plaintiffs to investigate the former owners’ assets.

“This is money that should have been in our hands in the first place. It was ours. We earned it,” said Bianca Garcia, a plaintiff in the lawsuit. “If that money had never been taken from us, it could have made differences in where some of us are today. Those funds may have helped someone pay off a student loan. Buy a car. Move to a better situation. Support a family. But it was deliberately kept from us. We will continue to fight for what is rightfully ours.”

Under Albuquerque’s minimum wage ordinance, if employers fail to pay workers their full wage, they must pay triple the wages that were withheld as well as attorneys’ fees. The business and the business owners, executives, and officers can be liable. 

In his July 2019 ruling, Judge Chavez determined that because Kellys failed to follow the rules for paying the tipped minimum wage, the former owners owed their employees the full minimum wage for those hours worked. 

Sixteen servers, represented by Youtz & Valdez, P.C. and the New Mexico Center on Law and Poverty, brought the class action lawsuit, Atyani v. Bonfantine, in April 2016 on behalf of about 150 former servers who worked at Kellys from 2013 to 2016. The lawsuit contends that after city voters overwhelmingly passed a ballot initiative in 2012 raising the Albuquerque minimum wage, Dennis and Janice Bonfantine “settled on an unlawful response to the wage increase: servers would pay for it themselves, out of their tips.” 

“Workers have the right to a fair and legal wage. This includes people who work for tips” said Stephanie Welch, director of workers’ rights at the Center. “Albuquerque has a strong law that holds employers accountable, whether or not there is a pandemic. Employers should know that if they don’t pay their employees a legal wage, they can be sued and end up paying much more in damages than if they had just paid their employees fairly.”

Kellys required servers to pay their employers cash each shift, calculated at two percent of their total daily sales, plus three dollars per hour they worked on the clock. After making these required payments to their employer, 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. 

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. In May 2017, the Second District Court rejected this argument, ruling that any challenge to how the 2012 election was conducted must have been made right after the election.

“We encourage every employee who is a victim of wage theft to come forward,” said Shane Youtz, an attorney at Youtz & Valdez, P.C. “You deserve to collect every dollar you worked for and are owed.“

Attorneys on the case are Stephanie Welch and Sovereign Hager of the New Mexico Center on Law and Poverty and Shane Youtz and James Montalbano of Youtz & Valdez, P.C.

The settlement agreement approved today can be found here: http://nmpovertylaw.org/atyani-v-bonfantine-settlement-agreement-final-and-approved-2020-09-29/

The order on Atyani v. Bonfantine can be found here: http://nmpovertylaw.org/case-law-summary-judgement-order-atyani-v-bonfantine-2019-07-12/

The Atyani v. Bonfantine complaint can be found here: http://nmpovertylaw.org/complaint-kellys-final-2016-04-28-filed

All hardworking New Mexicans need an equal access to unemployment aid

By Alicia Saenz.
This article appeared in the Albuquerque Journal on August 15, 2020.

Immigrant families like mine work hard to provide for our families and contribute so much to our communities. I work in maintenance at a local hospital to support myself and my son. With the layoffs brought on by COVID-19, I, like many of us, lost my job and had to seek out unemployment benefits.

Even though I am eligible for unemployment, I was never able to successfully submit my unemployment insurance application because I couldn’t get help in Spanish.

There were no Spanish instructions on the online application to help me with an issue that I had. I called the Department of Workforce Solutions to ask for help, but all of my calls except one went unanswered. The person I got a hold of did not speak Spanish, and there was no interpreter available. He told me that they would call me back, but no one ever did.

People who qualify for unemployment should be able to submit an application. For the process to be fair for all, it should accommodate the different languages of our state’s communities.

My experience trying to apply for unemployment made me feel powerless, like I didn’t exist. I didn’t get the unemployment my family desperately needs and that I qualify for just because I don’t speak English.

Like so many other people in our state, I worry about surviving this pandemic and getting back on my feet. I worried constantly about how to pay the bills, take care of my son and buy basic necessities for weeks without my income or unemployment benefits.

I am really worried about my community. Many of my Spanish-speaking friends have had the same kinds of problems with their unemployment application and haven’t received any benefits. They can’t support their kids. They can’t afford basic necessities for their families. I worry about them constantly, and I try to support them in any way that I can.

Even though we are resilient, my community is hurting. We have been left behind to fend for ourselves during this pandemic. We deserve better.

I support the efforts of the Asian Family Center, El Centro de Igualdad y Derechos, Catholic Charities, New Mexico Center on Law and Poverty and many others that wrote a letter to DWS urging the department to provide the language support and other services our communities need to access unemployment insurance. I encourage the Department of Workforce Solutions to not delay taking action any longer.

Unemployment benefits are a lifeline during this time when work opportunities are scarce.

Now more than ever, everyone that qualifies for unemployment needs equal access to it so we can keep our families healthy and strong and come out the other end of this pandemic with the means to rebuild our communities.

Elisa Cibils, who interned at the New Mexico Center on Law and Poverty, assisted the author with writing this in English.

Unemployment application process fails immigrants

By Huong Nguyen, New Mexico Asian Family Center
This article appeared in the Albuquerque Journal on September 7, 2020.

It is hard to believe the undue barriers Tram Tran and thousands of workers and out-of-work New Mexicans are going through to get the help they need and deserve during this difficult time.

Since April 2016, Tram has been a nail technician at Princess Spa and Nails. Her workplace shut down in March of this year. With the loss of income, Tram, her husband and their 18-month-old baby struggled to survive.

It was their first time experiencing unemployment. Tram went online to apply for unemployment benefits, but there were no applications or assistance available in Vietnamese. The process was unclear and misleading. The page crashed before she could submit, forcing her to start over again. Her account then got locked, and she didn’t understand what had happened. She called the Department of Workforce Solutions (DWS) hot line.

For weeks, it took her hours of waiting only to be randomly disconnected, or connected with representatives who said they could not address her problems. There were times when the line was transferred to a supervisor but then suddenly disconnected.

“I called DWS every single day, and I know the numbers and options by heart now,” said Tram, “It would have been OK if I just knew what was going on with my account.” She believed she put in the correct information, but the system kept saying her account wasn’t working and there were no explanations.

During this time, Tram and her family dipped into their savings to pay for groceries, diapers, mortgage, car payment and utility bills. She didn’t know how long it would last and what they could do to survive. “I am not getting much sleep, I have no idea what is next. So many people are mentally and emotionally checking out and I do not want to be one of those.”

By the time her benefits were approved, the system denied her three weeks of back pay. “It’s really unfair being denied because the system fails,” Tram said. When she called again, she was automatically sent to voicemail, and her problems went unaddressed. She was very disappointed and felt DWS didn’t listen to her. After months of waiting, Tram called and told us that she finally received her back pay on July 27.

At the New Mexico Asian Family Center (NMAFC), Tram’s story is only one among many. Since March, NMAFC, the only nonprofit in the state that provides culturally and linguistically tailored programs and services to the Pan-Asian community, started to hear many stories from community members who lost their jobs in the pandemic but couldn’t access the unemployment system. We heard these kinds of phrases over and over again: “How am I going to pay rent? How am I going to feed my family? What should I do if the bank forecloses my house?” The current system is leaving behind thousands of workers like Tram, especially non-English speaking immigrants and refugees.

On May 1, after working for weeks with the New Mexico Center on Law and Poverty and other partners, NMAFC sent in a letter with sign-ons from over 40 organizations and individuals to DWS Secretary Bill McCamley. Since then, we have barely seen any changes.

The unemployment system is built to provide a safety net for all working New Mexicans when they need it. NMAFC and organizations supporting workers’ rights in New Mexico call on DWS to fix problems and remove barriers to unemployment benefits so that all our working families can access benefits. Tram calls on DWS to provide applicants clear in-language instructions and applications, such as a video to help non-English speakers fill out their applications correctly so that no one has to experience the same situation as she.

Yazzie/Martinez plaintiffs present education plan to Legislative Finance Committee Friday

SANTA FE—On Friday, August 28, counsel for families, students, and school districts in the landmark Yazzie/Martinez education lawsuit will urge the state to develop and implement a comprehensive plan for overhauling New Mexico’s education system. Plaintiffs’ counsel will also share an assessment of deficiencies in the educational system. 

Detailed recommendations for how to reform the education system have been developed by hundreds of parents, families, tribal leaders, and educational experts and supported by research as detailed in the Transform Education NM platform for educational equity and a tribal remedy framework endorsed by New Mexico’s Pueblos, Tribes and Nations.

WHAT: 
LFC hearing on Yazzie and Martinez v. New Mexico plaintiffs plan to improve educational outcomes

WHO:
Counsel for Yazzie plaintiffs

  • Daniel Yohalem
  • Preston Sanchez, ACLU-NM
  • Melissa Candelaria, New Mexico Center on Law and Poverty
  • Alisa Diehl, New Mexico Center on Law and Poverty

Counsel for Martinez plaintiffs

  • Ernest Herrera, Mexican American Legal Defense and Educational Fund 

WHEN: 
Friday, August 28, 2020 at 10:00 a.m.

REMOTE ACCESS:
Webcast live at www.nmlegis.gov

Court blocks attempt to end lawsuit on food and Medicaid assistance


LAS CRUCES—A federal district judge ruled today that the New Mexico Human Services Department must continue to comply with a court order requiring it to fix systemic problems with processing Supplemental Nutrition Assistance Program and Medicaid applications. 

Judge Kenneth John Gonzales wrote in his order, “New Mexicans, now more than ever, rely on the timely and accurate processing of SNAP and Medicaid applications to obtain much needed help.” 

“This pandemic continues to ravage families’ health and their ability to work,” said Teague Gonzalez, director of Public Benefits at the New Mexico Center on Law and Poverty, which is representing the plaintiffs in the case. “It’s crucial that HSD comply with the law and remove unnecessary barriers to food and healthcare assistance.”

The long-running Hatten-Gonzales lawsuit was originally filed in 1989. While some progress has been made, the court requires a case review to determine if HSD has addressed entrenched problems in administering food and medical assistance. 

In 2016, HSD whistleblowers testified that there was a statewide policy of falsifying information on emergency benefits applications so the agency could pass federal audits and deadlines. This illegal policy resulted in thousands of New Mexican families going without the food assistance they needed.

In 2018, a case review found ongoing errors in the processing of food and medical assistance cases.

In its order, the court found HSD’s request to end the court’s oversight of fixes to the problems “premature” and “counterproductive” and “threatens to set back the progress the parties have made to this point.” 

The judge ordered a case file review of Medicaid and SNAP applications to continue and that parties engage in good faith negotiations. 

“We were surprised that the state’s counsel thought it appropriate to file this motion right now when so many New Mexicans have even more need for help,” said the Center’s Gonzalez. “We will continue our efforts to ensure New Mexicans can access food and healthcare assistance in close coordination with the court appointed Special Master and HSD.”

Judge Kenneth Gonzales’s order can be found here: http://nmpovertylaw.org/hatten-gonzales-v-scrase-order-staying-termination-of-consent-decree-2020-08-21/

The jointly developed corrective action plan can be found here: http://nmpovertylaw.org/hatten-gonzales-v-scrace-joint-motion-to-approve-two-corrective-action-plans-2019-07-10/

Alisa Diehl joins the Education team

By Paloma Mexika

I spoke with New Mexico Center on Law and Poverty’s new senior education attorney, Alisa Diehl, about her experience working in social justice. Ms. Diehl has years of legal and advocacy experience. She attended law school at University of Iowa College of Law and received her undergraduate degree at Arizona State University. This interview has been edited and condensed.

What made you interested in social justice/advocacy work? 

I grew up aware of inequity and injustice. My parents protested in the 70’s against the Vietnam war because of racial violence. My dad was moved by the injustices of the government—because of the war itself and the response to protestors at the time. My dad also was committed to learning about the injustices faced by Indigenous people. 

These perspectives were ingrained in me from a young age. I feel I have a responsibility to have a role in fighting against it. 

What in your upbringing influenced your decision to be a lawyer?

My parents made sure that I grew up aware of my privilege and that my life was easier because of it. I felt a responsibility to fight for equity, justice, and accountability, and one way to do that is through policy and the law. The law can help effectuate change.

To do this work, it’s important to really listen and understand what others are thinking, feeling, or experiencing. I put great value on humility, relationship building, and communication and supporting the work of Black, Indigenous, and people of color. 

What is your proudest accomplishment in this work?

What sticks out most are the several-year-long clients I worked with that turned into meaningful relationships. Before coming to the Center, I worked at Legal Aid focusing on unemployment benefits, housing, and domestic abuse litigation. I did individual client work, which is a much different form of advocacy work. 

In one specific unemployment benefits case, I represented a woman from the administrative level through the Iowa Supreme Court, where we were finally successful in helping her obtain benefits. She’s a working mother, a survivor of domestic violence, and a woman of color in a very white state. We had a great legal outcome, but more importantly, we connected and built a friendship over the years. We grew trust, practiced patience, and went through several legal hoops together because I helped her with other legal issues that arose in her life as a domino effect during that time. We still stay in touch. 

The way her life was impacted by the circumstances that led to her unemployment benefits case  was so stark in a state where the racial disparity for incarcerated Black residents is among the worst in the country. The events that happened to her showed very clearly the systemic and institutional racial inequalities that function effortlessly together. 

Why did you want to join the Center’s education team? 

I am a product of public schools, as is my husband and family. Public education has always been personally important to me. Perhaps more importantly, I am connected to this issue as a parent myself, because everyone wants a good education for their children.

Our social and economic systems maintain racial inequities and discrimination. The public education system is perhaps the greatest example of this. At the same time, public education has the most potential to be the great equalizer IF it’s administered and funded fully and equitably. 

I am excited to be part of a multifaceted approach to education advocacy. I look forward to developing and maintaining community relationships as part of the Transform Education NM coalition and the Yazzie counsel. I’m eager to join the formidable advocacy efforts of generations of New Mexican parents, teachers, community organizations, and education experts. 

Melissa Candelaria joins Education team

By Maria Archuleta

I spoke with New Mexico Center on Law and Poverty’s new senior education attorney, Melissa Candelaria, about the roots of her work in social justice. Melissa has years of legal, policy, and advocacy experience. She serves as an Oversight Commissioner for the 19 Pueblos District and is a citizen of the Pueblo of San Felipe. Melissa has worked for the U.S. Senate Committee on Indian Affairs, and for federal and state agencies, as well as non-profit organizations. She attended law school at UNM and received her undergraduate degree at Dartmouth College. This interview has been edited and condensed.

How did your upbringing influence your work?

I was born and raised in San Felipe Pueblo. My grandfathers and grandmothers and parents instilled me with core values of giving back to the community with the skills and gifts we have been blessed with by the Creator. They taught us to be generous in spirit and to do our part to make this world more conscious, caring, and compassionate. 

As Native young people, we were encouraged to embrace all that makes us special and unique and to treasure our shared language, culture, and traditions. My community understood that a Western education would enable us to participate and influence the larger community outside of the Pueblo, and I also knew I wanted to go away for college. I have always been interested in seeing and learning new things. 

Dartmouth was definitely a culture shock. So many of my peers went to elite prep schools, and I graduated from Bernalillo High School. I found my own way and learned to trust myself as a capable person and to excel academically in a competitive environment. I knew that my background made me very unique in this setting and helped me to synthesize the best of both worlds. 

Were you always interested in shaking up the education system?

Actually, yes. My undergraduate degree is in sociology and I minored in education. In public school, I didn’t see a diversity of students or teachers, the curricula left out the history and culture of indigenous peoples, and there was no Native language instruction at all. 

In college, I thought I was going to open my own charter school. I was very much interested in systemic change and creating a paradigm shift in education. I knew education opportunities for children of color, including more Native teachers in the classroom, was a way to make those changes. 

When I came back from college, I started working at a Native American prep school that has since closed. But my path changed, and I was drawn to assist tribal governments more broadly and worked on health and social services, development, sovereignty, and intergovernmental relations, but I always had special focus on education. 

What made you decide to become a lawyer?

Everybody already thought I was a lawyer. 

I had been working on public policy issues with the tribes and knew that having a legal background and skills would allow me to be a more effective advocate. It helped me empower individuals and communities to be successful and thrive. It goes back to my core values of giving back and serving others unconditionally and unselfishly. 

Having a law degree also made it possible to be an advocate at the national level. It was exciting to work on national public policy like the Indian Healthcare Improvement Act that impacted all of Indian country. I also had the privilege of working on state legislation like the Indian Education Act, which if implemented with the Yazzie/Martinez case would positively transform and further revolutionize education opportunities for our Native students. 

What do you hope to accomplish next?   

I approach my work with my heart. There is so much that still needs to be addressed for Native people and communities of color. The challenge is huge, but we cannot be discouraged by the enormity of the challenge.

I’m excited to be at the Center and to push for equitable education for all children. They deserve the opportunity to succeed. I’m very fortunate to and honored to work with the social justice champions here. 

Immigrant rights organizations denounce Sheriff Gonzales’ collaboration with Trump’s shadow police force


ALBUQUERQUE –  Bernalillo County Sheriff, Manuel Gonzales III, announced Tuesday afternoon he will meet with President Trump and Attorney General William Barr at the White House on Wednesday to discuss BCSO’s efforts to “combat crime.” This news comes after CBS News published a memo detailing that the Department of Homeland Security is considering Albuquerque as one of a few cities where more than 175 federal officers could be deployed.

The following is a joint statement by community groups in Bernalillo County expressing opposition to Sheriff Gonzales’ meeting with the Trump administration and the possibility of deploying paramilitary forces in NM:

Systemic racism pervades every institution of government, and unfortunately law enforcement is often its executor as proven by their systemic violence, brutality, abuse, and killings of Black and Brown lives across the country as a way to carry out a white supremacist agenda.

We unequivocally denounce the possible deployment of Trump’s federal paramilitary force in a majority community of color; this action is simply another damaging tactic laced with xenophobic and anti-immigrant sentiment that does not make families safe. It is a ploy to distract the nation from the failures of the Trump administration during a global pandemic while further descending into a totalitarian regime in the U.S.

The relationship between local law enforcement and our communities is already a fractured one as our city and county have experienced a deep and persistent history of police brutality and abuse. Most recently highlighted with the shooting of an unarmed protester by Steven Baca, the son of a former Bernalillo County Sheriff.

Sheriff Manuel Gonzales’ meeting with the Trump administration will only exacerbate the distrust and fear our families carry day to day, keeping domestic abuse survivors or victims of wage theft silent out of fear of deportation.

We must denounce any attempt to deploy a paramilitary force to our city. We strongly object to the meeting between the Bernalillo County Sheriff and the Trump administration, and we strongly object to the deployment of this paramilitary force into our county and our city.

Signed: NM Dream Team, El CENTRO De Igualdad y Derechos, Partnership for Community Action, Encuentro, Organizers in the Land of Enchantment, Center for Civic Policy, New Mexico Immigrant Law Center, New Mexico Center on Law and Poverty, Enlace Comunitario

Trump cuts to food assistance violate sovereignty of Native American Nations

By Christy Chapman, Native American Budget and Policy Institute and Tim Davis, New Mexico Center on Law and Poverty

No one should go without access to food in the United States. However, in the middle of a global pandemic when thousands of people are losing their jobs everyday, the Trump administration continues to pursue cuts to food assistance for more than 27,255 New Mexicans and 755,000 low-income adults nationwide by limiting unemployed adults to just three months of Supplemental Nutrition Assistance Program (SNAP) food assistance in a three year period.  

There are 23 sovereign nations in the territorial boundaries of New Mexico whose communities will be harmed by this rule. Yet, the federal government failed to consult these sovereign nations, or any others, on the proposed rule that would disproportionately impact Native communities and disrespects the sovereignty of Native governments. 

The Native American Budget and Policy Institute and New Mexico Center on Law and Poverty argue in an amicus brief that as a result the rule is illegal and should be blocked. 

Federal law has long limited SNAP for unemployed adults without children. However, states have flexibility to request waivers for areas with high unemployment and, if unemployment was high state-wide, the whole state could be waived from the time limit. The new rule would limit this flexibility and make it more difficult to obtain waivers for areas of high unemployment including sovereign Native American nations.  

The rule would disproportionately impact several Native American communities, where historically, the unemployment rate can be greater than 50%. In small and rural communities, the only job opportunities may be in the education, health, or government sector. 

The Trump administration ignored written comments against the rule documenting the significant harm it would cause American Indian/Alaskan Native communities. This violates the trust responsibility between the federal government and Native American Nations created by treaties when these Nations ceded large portions of their aboriginal lands to the United States in return for the right to self-government with reserved lands. 

The colonial land seizures restricted access to food, income and agriculture caused widespread food insecurity that persists today. Historic and ongoing systemic inequalities cause many Native American communities to be without the infrastructure and economic development opportunities for adequate employment for all its members. 

A federal court has temporarily stopped the rule and could permanently block it. Congress should also stop the rule and has already suspended its implementation during the public health emergency. 

Pueblos, Tribes, and Nations are in the best position to determine public policy within their territorial boundaries and for their members. In this time of racial reckoning and as the COVID-19 crisis exposes long standing systemic inequalities in New Mexico, the federal government must fulfill its trust responsibility and fully recognize the sovereignty of Native American nations. Under no circumstances should the federal government take food assistance away from people who can’t find work.