WORKERS AND COMMUNITY GROUPS WIN TEMPORARY RESTRAINING ORDER IN LAWSUIT AGAINST DEPARTMENT OF WORKFORCE SOLUTIONS
February 1, 2017
The order requires 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.
SANTA FE – Late Tuesday, New Mexicans whose legal rights were violated by the New Mexico Department of Workforce Solutions won a major victory in their lawsuit filed on January 17, 2017 to remedy the agency’s failure to enforce our state’s wage payment laws.
Among other claims, the lawsuit challenges the Department’s illegally-imposed $10,000 cap on investigating wage theft claims and the Department’s illegal practice of not investigating or taking any enforcement action on wage claims that go back more than one year. Under these policies, the Department was turning workers away and telling them that they were ineligible to file wage claims.
On January 31, 2017, Judge David Thomson of the First Judicial District Court issued a temporary restraining order requiring the Department of Workforce Solutions to immediately:
a) Accept and file otherwise valid Statement of Wage Claim forms without regard to the Department of Workforce Solutions’ $10,000 cap or limit or without regard to the one year lookback period;
b) Cease communication or instructions to workers/applicants that they are ineligible to file claims based on these two policies;
c) Keep and retain records of all claims partially investigated pursuant to these two policies;
d) Remove the statement on the Statement of Wage Claim form that “This office will not accept Statement of Wage Claims over $10,000.”
The judge ruled that a temporary restraining order is necessary to ensure that workers with claims impacted by the two policies can be located if the court issues final injunctive relief in the case.
The temporary restraining order will remain in effect until the Court holds a preliminary injunction hearing on May 3, 2017 at 1:00 p.m.
“We are thrilled that Court has put protections in place to ensure that workers who have experienced wage theft will no longer turned away for illegal reasons,” said Elizabeth Wagoner, a Supervising Attorney with the New Mexico Center on Law and Poverty and lead counsel on the case.
“This court decision is the first step to asserting protections for workers seeking relief from wage theft,” said Marco Nunez, Worker Justice Coordinator with El Centro de Igualdad y Derechos, a plaintiff in the case. "The trauma from wage theft extends beyond the immediacy of a working family struggling to cover costs like rent or mortgage and extends to reduced state revenues and mounting budget shortfalls. Hard working New Mexicans deserve strong workplace protections that honor their labor. We look forward to a closer examination and, ultimately, the elimination of DWS' arbitrary and illegal practices."
"This is a clear win for low-wage workers throughout New Mexico who for years have organized and stood up to this administration's unwillingness to enforce our state's strong wage laws and help their families recuperate their stolen wages," said Gabriela Ibañez Guzmán, staff attorney at Somos' United Workers Center. "Unscrupulous employers, who steal wages from their employees, have been put on notice."
"I’m glad the Department will now have to follow the law, do its job, and accept all complaints that come through the door," said Jose “Pancho” Olivas, a member of Somos Un Pueblo Unido from Gallup and plaintiff in the complaint who was rejected by DWS because his wage claim exceeded $10,000.
The plaintiffs in the case are four victims of wage theft and workers’ rights organizations Somos Un Pueblo Unido, El Centro de Igualdad y Derechos, NM Comunidades en Accion y de Fé (CAFÉ), and Organizers in the Land of Enchantment (OLÉ). In addition to Ms. Wagoner, the legal team includes NMCLP’s Gail Evans, Tim Davis, Santa Fe attorney Daniel Yohalem and Gabriela Ibañez Guzmán of Somos Un Pueblo Unido.
Background on the lawsuit:
New Mexico has some of the country’s strongest state-level protections against wage theft. These 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 and the claim can go back even further if 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.
However, the lawsuit alleges 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.