Commentary: 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.
"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."
"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.
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.
"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 Gabriela Ibañez Guzmán, staff attorney at Somos Un Pueblo Unido's worker center. "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."
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.