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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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.

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.

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.