Workers win wage theft fight against former owners of Kellys Brew Pub

ALBUQUERQUE—The former owners of Kellys Brew Pub and Restaurant violated Albuquerque’s minimum wage ordinance, Judge Benjamin Chavez of the Second Judicial District Court ruled late Friday. The court also 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. 

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. A trial to determine the exact amount of damages and attorneys’ fees the business and its owner owe the servers is currently set for October 2019.

“This victory puts all restaurants on notice that they must pay every worker, by law, for every hour they have worked,” said Bianca Garcia, a plaintiff in the case. “The law is on the side of fair pay. Dennis and Janice Bonfantine should be ashamed of themselves for going through such extremes—trying to overturn the minimum wage law altogether—just to avoid paying back the money they took from us.”

15 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, the Bonfantines “settled on an unlawful response to the wage increase: servers would pay for it themselves, out of their tips.” 

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.

“Albuquerque’s minimum wage law has teeth. Unscrupulous employers who don’t pay their workers the legal wage can be sued and end up paying much more in damages than if they had just paid their employees fairly,” said Stephanie Welch, supervising attorney with the New Mexico Center on Law and Poverty. “Workers have the right to a fair and legal wage. This includes people who work for tips.” 

“The Kellys servers showed incredible persistence in fighting the Bonfantines, who literally took their hard-earned money out of their pockets,” said Shane Youtz, an attorney at Youtz & Valdez, P.C. “We encourage every employee who is a victim of wage theft to come forward. You deserve to collect every dollar you worked for and are owed.“

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

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 transcript of the hearing in which the judge explains his ruling can be found here: http://nmpovertylaw.org/transcript-atyani-v-bonfantine-hearing-ruling-only-2019-05-29/

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

Law guaranteeing basic wage protections for home care and domestic workers goes into effect today

SANTA FE—A law goes into effect today that ensures home care and domestic workers—the people who clean homes and deliver care for others—are protected by New Mexico’s minimum wage standards and other wage protections.

Under the Domestic Service in Minimum Wage Act, domestic and home care workers are now covered by New Mexico’s wage laws, and the New Mexico Department of Workforce Solutions can investigate their complaints, enforce their rights, and recover their wages and damages.

“Talking with domestic workers, we have found that this is a growing industry and many of these workers in the past didn’t have anywhere to go to when they have been the victims of wage theft,” said Hilaria Martinez, a community organizer for El CENTRO de Igualdad y Derechos.

“Our domestic worker committee has found that cases like these keep increasing, especially to women in this field and other minorities in our community,” Martinez added. “Therefore, after years of hard work and community organizing, I am glad to see this law go into effect to deter workplace exploitation for domestic workers and for them to finally be valued like any other worker in our state.”

Domestic workers have been left out of many labor protections throughout history, and typically had very few options when they were not paid.

The Domestic Service in Minimum Wage Act, sponsored by Sen. Liz Stefanics and Rep. Christine Trujillo, ended the exemptions for domestic workers from New Mexico’s wage laws—as has already been done at the federal level.

New Mexico law generally requires employers to pay employees minimum wage and overtime, keep records, and pay employees in full and on time. However, like other wage laws enacted in the 1930s, it excluded large categories of work typically performed by women and people of color from the minimum wage and other protections.

Federal law eliminated its exclusion of domestic workers years ago, but lacking state protections, New Mexicans who work in people’s homes were not protected and were subject to low or no pay and exploitative situations.

“The Domestic Service in Minimum Wage Act was a culmination of years of work, including listening sessions with caregivers. The New Mexico Legislature recognized that it’s high time to ensure all workers, including people who work hard in other people’s homes, are guaranteed fundamental labor protections just like everyone else,” said Adrienne R. Smith of New Mexico Caregivers Coalition. “Domestic workers’ historical exclusion from the federal labor laws is an ugly vestige of slavery. The federal government righted that wrong years ago. We are overjoyed that today New Mexico has finally done so as well.”

In the 2017 New Mexico legislative session, the New Mexico Caregivers Coalition successfully spearheaded Senate Joint Memorial 6 that created a statewide taskforce to recommend short-term and long-term actions to promote a stable and growing workforce to meet the needs of seniors and individuals with disabilities who rely on these services in order to live independently in their communities.

“There is nothing more important than taking care of New Mexico’s children, elderly, and family members with disabilities,” said Alicia Saenz a member of El CENTRO de Igualdad y Derechos. “It is invisible work and historically, our work has not been given the value it deserves. I am proud to provide these services to my community. The implementation of this law today is a step in the right direction to give domestic workers the respect and dignity they deserve.”

“This law was the result of people doing some of the toughest jobs—like caring for others’ loved ones—coming from around the state, sharing their stories, and speaking up for fairness,” said Stephanie Welch, supervising attorney at the New Mexico Center on Law and Poverty. “Domestic and home care workers are now entitled to the state minimum wage and can file a claim with DWS when they are not properly paid.”  

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The New Mexico Caregivers Coalition advocates for direct care workers’ education, training, benefits, wages and professional development so they may better serve people who are elderly and those with disabilities.

El CENTRO de Igualdad y Derechos is a grassroots, Latino immigrant-led organization based in Central New Mexico that works with Latino immigrant communities and allies to defend, strengthen, and advance the rights of our community.

The New Mexico Center on Law and Poverty is dedicated to advancing economic and social justice through education, advocacy, and litigation. We work with low-income New Mexicans to improve living conditions, increase opportunities, and protect the rights of people living in poverty.

Bill guaranteeing basic wage protections for home care and domestic workers signed into law

SANTA FE—Governor Michelle Lujan Grisham signed a bill into law that ensures home care and domestic workers—the people who clean homes and deliver care for others—are protected by New Mexico’s minimum wage standards and other wage protections. Senate Bill 85, Domestic Service in Minimum Wage Act, is sponsored by Sen. Liz Stefanics and Rep. Christine Trujillo.

“This is a historic win for domestic and home care workers,” said Carlota Muñoz, a member of El CENTRO de Igualdad y Derechos. “During my employment at a cleaning service company, I stopped receiving payments for the hours I was working. I felt helpless and felt my work was not being given any respect. I am proud of the services I provide for my community, and I am glad to see this law go into effect that will provide workers like me more protections and assurance that their work will be valued like any other.”

Domestic workers have been left out of many labor protections throughout history, and typically have very few options when they’re not paid. SB 85 ends the exemptions for domestic workers from New Mexico’s wage laws—as has already been done at the federal level.

“We are proud of the work that domestic workers provide,” said Alicia Saenz, also a member of El CENTRO de Igualdad y Derechos. “There is nothing more important than taking care of New Mexico’s children, elderly, and family members with disabilities. It is invisible work, fraught with exploitation such as wage theft, and historically, our work has not been given the value it deserves. SB 85 is a step in the right direction to remedy that and to extend protections to enable us to assert our rights. We will continue to organize domestic workers and low-wage workers until all workers are treated with the dignity and respect that we deserve.”

New Mexico law generally requires employers to pay employees minimum wage and overtime, keep records, and pay employees in full and on time. However, like other wage laws enacted in the 1930s, it excluded large categories of work typically performed by women and people of color from the minimum wage and other protections.

“Domestic workers and home care workers have difficult and important jobs that we depend on,” said Stephanie Welch, supervising attorney at the New Mexico Center on Law and Poverty. “This legislation eliminates outdated, discriminatory practices in New Mexico so people doing some of the toughest jobs, like caring for others’ loved ones and cleaning houses, are treated fairly and can seek recourse when they are not.”

Federal law eliminated its exclusion of domestic workers years ago, but lacking state protections, New Mexicans who work in people’s homes were not protected and subject to low or no pay and exploitative situations.

With the passage of SB 85 into law, domestic and home care workers will now be covered by New Mexico’s wage laws, and the New Mexico Department of Workforce Solutions can investigate their complaints, enforce their rights, and recover their wages and damages.

“The New Mexico Legislature recognized that it’s high time to ensure all workers, including people who work hard in other people’s homes, are guaranteed fundamental labor protections just like everyone else,” said Adrienne R. Smith of New Mexico Caregivers Coalition. “Domestic workers’ historical exclusion from the federal labor laws is an ugly vestige of slavery. The federal government righted that wrong years ago. We are overjoyed that today New Mexico has finally done so as well.”

The New Mexico Senate passed SB 85 on February 18. The House of Representatives passed it on March 12.

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The New Mexico Center on Law and Poverty is dedicated to advancing economic and social justice through education, advocacy, and litigation. We work with low-income New Mexicans to improve living conditions, increase opportunities, and protect the rights of people living in poverty.

The New Mexico Caregivers Coalition advocates for direct care workers’ education, training, benefits, wages and professional development so they may better serve people who are elderly and those with disabilities.

El CENTRO de Igualdad y Derechos is a grassroots, Latino immigrant-led organization based in Central New Mexico that works with Latino immigrant communities and allies to defend, strengthen, and advance the rights of our community.

New Mexico workers win significant wage increase

Santa F.–New Mexico workers and their families celebrated on Friday after the House of Representatives and the Senate agreed to a legislative compromise reached in conference committee that will raise the state’s minimum wage for the first time in over 10 years. The proposal now heads to the governor’s desk for final signature.

A statewide minimum wage coalition mobilized hundreds of workers from across New Mexico during the session in support of a wage hike, coalescing around Rep. Miguel García’s (D-Bernalillo) $12 minimum wage bill (HB 31).

During a conference committee late Thursday night between members of the House and Senate, led negotiations in a final compromise that:

  • Gradually increases state minimum wage to $12 an hour by 2023
  • Gradually increases the “tipped credit” for tipped employees to $3 an hour by 2023
  • Allows for a new sub-minimum wage for students at $8.50 an hour
  • Does not include an annual cost of living adjustment

Below are reactions from low-wage workers and community organizations across New Mexico:

“This is a victory for New Mexico’s working families and came about as a result of years of organizing efforts lead by low-wage workers,” said Margarita Castruita Flores a member of El CENTRO de Igualdad y Derechos. “We are proud of the contributions that low-wage workers make to our State and this compromise bill is a step in the right direction for our families to obtain financial stability. There is still a lot of work ahead and we will continue to organize our communities to obtain a living wage for all workers in New Mexico.

“Workers and champions like Rep. Miguel Garcia refused to give up,” said Marcela Diaz, Executive Director for Somos Un Pueblo Unido. “By raising the minimum wage, the legislature finally recognized that workers are the backbone of New Mexico’s economy and should be compensated fairly. Getting to $12 per hour will make a big difference for our families in rural communities and local economies.”

OLÉ member Cristal Carter said, “$12/hour by 2023 is a big win for ALL hardworking New Mexico families. We fought hard for this and it shows. Families will now have the stability they need to thrive in our communities because over 200,000 workers across the state of New Mexico will receive the raise they deserve.”

“An increase in the minimum wage will mean a better living situation for the folks in our community who need it the most — people working hard, full time and still on the brink of poverty. It was more difficult than it should have been for the voices of workers to be heard at the legislature and we will continue to stand shoulder to shoulder in the fight for a living wage and true economic security for families across New Mexico,” said J.D. Mathews, State Political Director for New Mexico Working Families Party.

“This victory is the result of workers from all across New Mexico coming together to push for wages that respect their work and allow them to provide for themselves and their families,” said Stephanie Welch, a supervising attorney at the New Mexico Center on Law and Poverty. “The increase will help people who receive the lowest wages in the state finally recover some of their lost spending power. It was high time they saw a raise. The cost of living has gone up over the last 10 years, but the minimum wage stayed flat.” 

Bill guaranteeing basic wage protections for home care and domestic workers awaits governor’s signature

SANTA FE— Today, the New Mexico House of Representatives passed Senate Bill 85, sponsored by Sen. Liz Stefanics and Rep. Christine Trujillo, which would ensure home care and domestic workers—the people who clean homes and deliver care for others—are protected by New Mexico’s minimum wage standards and other wage protections. The bill will now go to Governor Michelle Lujan Grisham’s desk for approval.

Domestic workers have been left out of many labor protections throughout history, and typically have very few options when they’re not paid. SB 85, Domestic Service in Minimum Wage Act, ends the exemptions for domestic workers from New Mexico’s wage laws—as has already been done at the federal level.

“Domestic workers and home care workers have difficult and important jobs that we depend on,” said Stephanie Welch, supervising attorney at the New Mexico Center on Law and Poverty. “SB 85 eliminates outdated, discriminatory practices in New Mexico’s labor protections so people doing some of the toughest jobs like caring for our loved ones and cleaning our houses are treated fairly, and can seek recourse when they are not.”

New Mexico law generally requires employers to pay employees minimum wage and overtime, keep records, and pay employees in full and on time. However, like other wage laws enacted in the 1930s, it excluded large categories of work typically performed by women and people of color from the minimum wage and other protections. The New Mexico Legislature has recognized that it’s time to ensure all workers, including people who work hard in other people’s homes, are guaranteed fundamental labor protections just like everyone else.

“We are optimistic that Governor Lujan Grisham will sign SB 85 into law, guaranteeing domestic workers are no longer ignored in the eyes of the law,” said Adrienne R. Smith of New Mexico Caregivers Coalition. “Cleaning houses and taking care of elderly people or children demands dedication, time, and experience. The people who are in these life-saving roles deserve our respect and the same protections as all other workers.”

Federal law has since eliminated its exclusion of domestic workers, but without state protections, New Mexicans who work in people’s homes are not protected and may be subject to low or no pay and exploitative situations. If domestic workers were covered by New Mexico’s wage laws, the New Mexico Department of Workforce Solutions would investigate their complaints, enforce their rights, and recover their wages and damages.

Senate passes bill guaranteeing basic wage protections for domestic workers

SANTA FE— Today, the New Mexico Senate passed SB 85, sponsored by Sen. Liz Stefanics and Rep. Christine Trujillo, which would ensure home care and domestic workers—the people who clean homes and deliver care for others—are protected by New Mexico’s minimum wage standards and other wage protections.

Historically, domestic workers have been left out of many labor protections and have little recourse when not paid. SB 85, Domestic Service in Minimum Wage Act, removes exemptions for domestic workers from New Mexico’s wage laws—as has already been done at the federal level.

“Everyone deserves to be paid a fair wage for their work,” said Stephanie Welch, supervising attorney at the New Mexico Center on Law and Poverty. “SB 85 would eliminate archaic and discriminatory treatment in New Mexico’s labor protections so people who work hard in other people’s homes and as caregivers are treated fairly and can seek recourse when they are not.”

New Mexico law generally requires employers to pay employees minimum wage and overtime, keep records, and pay employees in full and on time. However, like other wage laws enacted in the 1930s, it excluded large categories of work typically performed by women and people of color from the minimum wage and other protections.

“Domestic workers deserve the same protections as other workers” said Adrienne R. Smith of New Mexico Caregivers Coalition. “Cleaning houses and taking care of people demands dedication, time, and experience. It’s time we changed how we value this work and the people who perform it.”

Federal law has since eliminated its exclusion of domestic workers, but without state protections, New Mexicans who work in people’s homes are not protected and may be subject to low or no pay and exploitative situations. If domestic workers were covered by New Mexico’s wage laws, the N.M. Department of Workforce Solutions would investigate their complaints, enforce their rights, and recover their wages and damages.

The bill will now be assigned to a committee in the House of Representatives for consideration.