January 24, 2017

New Mexico Legislature Considers Significant Employment Bills

west_lBy Little V. West 

The New Mexico Legislature is one week into its 60-day session, which ends on March 18, 2017. Legislators have introduced a number of bills that, if enacted, would affect employment laws for private employers in New Mexico. Here are the highlights of the most significant employment-related bills presently being considered.

Increasing the Minimum Wage

  • HB 27, introduced by Rep. Patricia Roybal Caballero (D-Bernalillo), would increase the state minimum wage from $7.50 to $15.00 per hour effective January 1, 2018. On January 1 of each successive year, the state minimum wage would automatically increase to account for a cost of living increase using a percentage set by the United States Department of Labor’s consumer price index for all urban customers (CPI-U). The bill also would eliminate the lower minimum wage provision for employees who customarily and regularly receive more than $30 per month in tips.HB 27 has been sent to the House Business and Industry Committee, and referred to the House Judiciary Committee and the House Business and Industry Committee.
  • HB 67, introduced by Rep. Miguel P. Garcia (D-Bernalillo), would increase the state minimum wage from $7.50 to $8.40 per hour on January 1, 2018, to $9.20 per hour on January 1, 2019, and to $10.10 per hour on January 1, 2020. In a provision that apparently conflicts with this schedule of set rates for each year, HB 67 also calls for a cost of living increase of the previous year’s minimum wage rate using the percentage tied to the CPI-U. HB 67 would modify the lower minimum wage provision for tipped employees from $2.13 per hour to a rate that is forty percent of the state minimum wage for non-tipped employees.HB 67 has been sent to the House Labor and Economic Development Committee, and referred to the House Business and Industry Committee and the House Labor and Economic Development Committee. 
  • SB 36, introduced by Sen. William P. Soules (D-Doña Ana), would increase the state minimum wage to $8.45 per hour, effective July 1, 2017, with an annual cost of living increase on January 1 of each successive year, to be set by the New Mexico Department of Workforce Solutions based upon the CPI-U, and rounded to the nearest multiple of five cents. SB 36 would provide for an exception for small businesses, allowing employers with ten or fewer employees to continue to pay the current $7.50 hourly minimum wage, adjusted annually on January 1 of each following year, if there is a cost of living increase. SB 36 also includes a trainee exception which would permit employers with ten or more employees to pay trainees a minimum wage of $7.50 per hour for the first six months of employment, again with that rate subject to a cost of living increase on January 1 of each following year, if any. SB 36 would also increase the minimum wage for tipped employees to $2.65 per hour, to be adjusted annually. SB 36 has been sent to the Senate Public Affairs Committee, and referred to the Senate Corporations and Transportation Committee and the Senate Public Affairs Committee. 

Employee Leave

  • Caregiver Leave Act: HB 86, introduced by Reps. Deborah A. Armstrong (D-Bernailillo), and Michael Padilla (D-Bernalillo), would require employers that offer sick leave for an employee’s own illness, to allow accrued sick time to be used by employees to care for sick family members under the same terms and procedures that the employer imposes for any other use of sick leave by the employee. Family members would be defined as a person related within a third degree of consanguity or affinity to the employee. The bill would prohibit retaliation against an employee for requesting or using caregiver leave, filing a complaint with the Department of Workforce Solutions for violation of the Caregiver Leave Act, cooperating in an investigation or prosecution of an alleged violation of the Act, or opposing any policy, practice or act prohibited by the Act. HB 86 has been sent to the House Health & Human Services Committee, where it is set for hearing on January 25, 2017, and referred to the House Judiciary Committee and the House Health and Human Services Committee.
  • Military Reemployment Amendment: HB 83, introduced by Rep. Debbie Rodella (D-Rio Arriba, Santa Fe and Taos), would extend New Mexico’s existing law protecting the reemployment of persons in the armed forces to those that have served in the national guard of any other state or territory of the United States, clarifying that the protections are not limited only to members of the New Mexico national guard.HB 83 has been sent to the House State Government, Indian & Veterans’ Affairs Committee and referred to the House Judiciary Committee and the House State Government, Indian & Veterans’ Affairs Committee.

Pregnancy Discrimination and Accommodation Bill 

  • Pregnant Worker Accommodation Act: HB 179, introduced by Reps. Gail Chasey (D-Bernalillo), Deborah A. Armstrong (D-Bernalillo), and Joanne J. Ferrary (D-Doña Ana), would require employers of four or more employees to reasonably accommodate a known limitation arising out of pregnancy, childbirth, and related conditions. Reasonable accommodations would include modifying or adapting an employee’s work environment, work rules, or job responsibilities for as long as necessary to enable an employee with limitations due to pregnancy or childbirth or a related condition to perform the job, absent an undue hardship on the employer. The proposed law sets forth a number of factors to determine what may constitute an undue hardship.

HB 179 would prohibit employers from discriminating on the basis of pregnancy-related conditions, such as failing to reasonably accommodate, imposing adverse employment actions, making job postings or pre-employment inquiries (unless based on a bona fide occupational qualification,) and requiring an employee to take leave if another reasonable accommodation may be provided. If passed, the bill would require employers to provide written notice of an employee’s rights pursuant to the Pregnant Worker Accommodation Act to job applicants, new employees, existing employees, and to employees who give notice of pregnancy, childbirth or a related condition. HB 179 has been sent to the House Health and Human Services Committee and the House Judiciary Committee.

Marijuana 

  • Cannabis Revenue and Freedom Act: HB 89, introduced by Reps. Bill McCamley (D-Doña Ana), and Javier Martinez (D-Bernalillo), is an effort to generate and capture income from marijuana-related taxes to assist the state’s finances, given the current budget crisis. While the introduced version of the bill states that it should not be construed to change state and federal laws pertaining to employment matters, or affect New Mexico’s medical marijuana statute, the bill nevertheless includes a section on employment protections.

Section 32 of HB 89 states that “[u]nless an employer establishes by a preponderance of the evidence that an employee’s use of marijuana in compliance with the Cannabis Revenue and Freedom Act has impaired the employee’s ability to perform the employee’s job responsibilities, the employer shall not take any adverse action against the employee for: (1) the employee’s conduct that complies with the act; or (2) the employee’s drug test results that show the presence of marijuana components or metabolites.” The bill provides that an employer may consider an employee to be impaired if, while working, the employee manifests specific articulable symptoms that decrease the employee’s performance of the duties of the employee’s job. If passed, this language would fundamentally change the current interpretation of law as it concerns marijuana usage in New Mexico (see article here), and also shifts the burden of proof from the employee to the employer in case a termination for marijuana usage is challenged. The provision thus threatens to impose substantial burdens on NM employers.

HB 89 has been sent to the House Consumer & Public Affairs Committee, and referred to the House Business & Industry Committee, the House Appropriations and Finance Committee, and the House Consumer & Public Affairs Committee.

Ban-the-Box Bill

  • Criminal Offender Employment Act: SB 78, introduced by Sen. Bill B. O’Neill (D-Bernalillo) and Rep. Alonzo Baldonado (R-Valencia), would prohibit private employers who use a written employment application from inquiring into an applicant’s conviction record on the employment application. Employers could, however, consider an applicant’s conviction after review of the written application and upon discussion of employment with the applicant. Employers would still be able to notify applicants that the law or the employer’s policy could disqualify them from employment in particular positions based on a certain criminal history. SB 78 has been sent to the Senate Public Affairs Committee, and referred to the Senate Judiciary Committee and the Senate Public Affairs Committee.

Revision to Statute Banning Health Care Non-Compete Agreements 

  • SB 82, introduced by Sen. Gerald Ortiz y Pino (D-Bernalillo), would revise the New Mexico statute providing that non-compete agreements for health care practitioners are unenforceable by limiting the unenforceability provision so that it applies only to non-competes restricting the right to provide health care services in the State of New Mexico. The bill would add a further clause rendering an agreement for health care services as void, unenforceable and against public policy if the provision “(1) makes the agreement subject to the laws of another state; or (2) requires any litigation arising out of the agreement to be conducted in another state.” Under the bill, this latter provision would be effective to agreements, renewals or extensions of agreements executed on or after July 1, 2017.SB 82 has been sent to the Senate Public Affairs Committee, and referred to the Senate Judiciary Committee and the Senate Public Affairs Committee. 

Worker’s Compensation Appeals and Jurisdiction

  • SB 122, introduced by Sen. Jacob R. Candelaria (D-Bernalillo), would revise the worker’s compensation appeals process, including creating an administrative appeals process, and removing jurisdiction for an administrative appeal from the New Mexico Court of Appeals, and vesting that jurisdiction in the New Mexico Supreme Court. SB 122 was sent to the Senate Corporations and Transportation Committee.

Stay Tuned

The deadline for introduction of bills is February 16, 2017. We will continue to monitor legislation throughout the Legislative Session and will report back on any new employment-related developments.

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