UPDATE | 12.26.2021

Thank you to everyone who joined us for the 2021 SHRM New Mexico Conference, “HR: Powerup!” This conference was an exciting one with lots of new legislation to discuss. Many of you have been seeing our updates on House Bill 20, the Healthy Workplaces Act, and discussion around this item and others continued at the conference. The HR community has been hoping for further guidance around HB 20 from the Department of Workforce Solutions but with the recent resignation of the Secretary of the DWS, Bill McCamely, guidance may be delayed. More information on the legislation will be forthcoming on the Southwestern HR Consulting website as soon as additional guidance is provided from DWS.

UPDATE | 12.20.2021

The Department of Workforce Solutions (DWS) had requested written comments to the Healthy Workplaces Act (HWA) by December 14, 2021, and on December 15, 2021, they held an online meeting for additional public comment. DWS did not at the time provide answers to those comments but signified the comments would be considered and that HWA would be providing a poster for employers, a manual, and FAQs. The proposed rule is currently on the following site. Andrea Christman, Counsel for DWS, confirmed that the updated rule would appear on NMAC 11.1.6. The proposed rule is in a different format and order from the original bill. Southwestern HR Consulting will be keeping an eye on any updates and will provide additional information in this blog.

UPDATE | 4.19.2021

Now that the legislative session is over, it is time to look at how some of the bills that have passed in New Mexico may affect employers. Those of you who have been reading our posts are aware of the passage of HB 20, the Healthy Workplaces Act (HWA). HWA requires the accrual of 1 hour of paid sick leave for every 30 hours worked (up to 64 hours of sick leave per year) for each of their employees. The Act also addresses penalties for noncompliance or for misclassifying employees as independent contractors. The Act is not effective until July 1, 2022. The period between now and the effective date will give employers much needed time to prepare financially and to ensure policies and practices are in place to support adherence to the Act.

Why is this important?

Sections 9 through 11 of the Act discuss enforcement, civil actions, and employer liability. In some cases, an employer could be paying up to “three times the wages” of the employee for the wages that should have been paid under the Act. In addition, a plaintiff who files and wins in legal action may recover “all appropriate legal or equitable relief, the costs and expenses of (the) suit and reasonable attorney’s fees,” in addition to damages.

I’d like to highlight the charge for misclassifying an employee as an independent contractor. As sited in the Act, the penalty consists of actual damages or $500, whichever is greater. However, employers should be aware, the issue of misclassification can lead to other litigation and penalties outside of this Act which can also impact the employer.

You may want to do a review of your positions to ensure that the job duties (where, when, and how the independent contractor can do the work) are sufficient to support that they are truly an independent contractor. The IRS website, under “Small Business and Self Employed,” has a site that discusses independent contractors and employees and provides “Common Law Rules” that are factors in determining the individual as an employee or a contractor. You may want to do a self-audit of your contracted positions this year just to be sure.

If you are interested in contacting Southwestern HR Consulting about conducting an audit or updating your employee job descriptions, please contact us with the link below.

UPDATE | 4.12.2021

Many of you have seen our summary of House Bill (HB) 20, the Healthy Workplaces Act,  which requires employers to provide up to 64 hours of paid sick leave per year (accrued at a rate of one hour of paid sick leave for every thirty hours worked). See March 23, 2021 posting below. This legislation was signed by the Governor on April 8, 2021. While the Act is not effective until July 1, 2022, employers will want to begin preparing for the fiscal impact. Employers should also begin considering the changes they will make to be in compliance with the Act when it does become effective.

If you are interested in finding out more about the services we provide and how we can help you prepare for employment related regulations, including HB 20, please contact us at https://swhrc.com/contact/.

As you all are probably aware from the news, House Bill (HB) 2 (the Cannabis Regulation Act) was recently signed by the Governor. HB 2 provides for rules to be established and made known to the public by the Cannabis Control Division of the Regulation and Licensing Department no later than January 1, 2022. The Act also provides for the Division to accept and begin processing of license applications for cannabis activity for producers, no later than September 1, 2021. Employers should be aware that the Act includes occupational health and safety and employment components. Below is a summary of some of those items:

• Employers that are cannabis producers will need to be in compliance with rules disseminated by the Environmental Improvement Board and will be subject to inspection of cannabis establishments to ensure the health and safety of employees in accordance with the Occupational Health and Safety Act.
• Employees of cannabis producers must be over the age of twenty-one. In addition, cannabis servers will be required to undergo a certain level of education and must be permitted within thirty days of employment.
• Cannabis producers will need to provide demographic data on their employees to the Division on an annual basis.
• In relation to all employers, including those in the non-cannabis industry, the Act specifically states that “unless there is an agreement between the employer and employee, nothing in the Cannabis Regulation Act:” 1) prohibits the employer from taking action against an employee for impairment, use, or possession of intoxicating substances at work or during work hours 2) requires the employer to take actions that would put them in non-compliance with federal law/regulations or would result in the loss of a federal contract or funding, or 3) would prevent the employer from having a zero-tolerance policy. (The Act does not apply to employers subject to title 2 of the federal Railway Labor Act.)

Please stay tuned as we learn more of the details regarding this regulation or feel free to reach out to us.

UPDATE | 4.5.2021

OFCCP UPDATE

The Office of Federal Contract Compliance Programs just updated the Vietnam Era Veteran’s Readjustment Assistance Act (VEVRAA) hiring benchmark for federal contractors/subcontractors. The rate has been updated to 5.6%. State-level veteran availability data has also been updated in the VEVRAA Hiring Benchmark Database.

SPECIAL LEGISLATIVE SESSION – NEW MEXICO

The special session which started at the New Mexico legislature today includes not only the cannabis bill but includes Senate Bill (SB) 2 which entails “revising the list of criminal records that cannot be considered in an application for public employment.” This Bill also provides for expungement of records for “certain cannabis offenses” and “providing for recall or dismissal of sentences of incarcerated persons.”

The situations that a public employer can consider is limited in this Bill to convictions that are recent and “sufficiently job-related to be predictive of performance in the position sought, given the position’s duties and responsibilities.” If passed, private and public employers will want to stay tuned for possible changes in practices base on final decisions related to some offenses being recalled or dismissed. Public employers will need to closely review individuals who are not hired based on their criminal record due to the language highlighting applicability to public employment.

UPDATE | 3.23.2021

House Bill (HB) 20, the Healthy Workplaces Act, just passed the Senate with amendments on Saturday, March 20th, prior to the close of the legislature at noon. Because the Bill passed within 3 days of the close of the legislative session, the governor has 20 days to sign the Bill into law. Southwestern HR Consulting (SWHRC) will be monitoring signature of this Bill. SWHRC is also in process of analyzing the Bill and will create information and tools to help our customers prepare in the event the Act is signed.  If you are interested in finding out more about the services we provide and how we can help you prepare for employment related regulations, including HB 20, please contact us at https://swhrc.com/contact/.

Below is a basic summary of the Bill. The amended Bill that passed the Senate can be viewed on the State Legislative website.
Under this Bill most employers with one or more employees, except the Federal Government, the State or political subdivision of the State or employees subject to Title II of federal Railway Labor Act, will be required, beginning July 1, 2022 (or on the date of an employee’s hire, if later) to provide its employees (including, part-time, temporary, and seasonal employees) with an hour of paid sick leave for every thirty hours worked up to a maximum of sixty-four hours for a twelve-month period. While the effective date of the Bill, if approved by the Governor, is not effective until 2022, employers will need to develop tracking systems to ensure compliance and avert penalties and to ensure staffing is sufficient to sustain services in the event that staff use the time allotted to them under the Act.

The twelve-month period for use of the leave is determined by the employer and can be:
A) the calendar year;
B) any fixed twelve-month period (e.g. fiscal year, employee anniversary date, or other twelve-month period required by other law);
C) a twelve-month period measured forward from the time the employee first uses the leave;
D) a rolling twelve-month period measured backward from the date an employee uses any earned sick leave

Instances that qualify for the leave include time off related to mental or physical illness, injury or health conditions and includes preventive care, for the employee or their family members or other individuals with a relationship to the employee as defined under the Bill. Employers who are already covered under the Family Medical Leave Act (FMLA) will notice some similarity in definitions and coverage. The Bill also covers meetings at a child’s school and place of care related to the child’s healthcare and absences necessary due to domestic abuse situations, sexual assault or stalking related cases related to the employee or a family member for certain reasons as defined under the Bill. (Please note New Mexico’s Domestic Abuse Leave Act may be applicable even when the employee has not accrued sufficient leave under HB 20.)

Additional Considerations

Unused accrued time will carry over from year-to-year but the employer is only obligated to provide up to the sixty-four hours per twelve-month period.

The employee is entitled to all earned sick leave if transferred but remains with the same employer or if rehired within twelve months of separation by the same employer. The same is true of employees who remain when a successor employer takes over operations from a prior employer.

An employer can request the employee provide signed documentation from a healthcare provider indicating the amount of sick leave taken is necessary, if the employee uses two or more consecutive days of leave.  A listing of reasonable documentation for domestic abuse, sexual assault, or stalking is included under the Bill. The employer cannot delay granting of the time off because documentation has not yet been received.

Leave can be used in increments of as little as an hour or the smallest amount the employer uses in their payroll system.  

Additional Requirements

Employee can make an oral or written request and should do so in advance as soon as reasonably foreseeable or if not possible, as soon as practicable. When possible, the request shall include the expected duration of the leave.

The employer shall not require the use of other paid leave before the use of sick leave under this Bill. 

The employer shall give written notice in the employee’s “first” language, if spoken by at least ten percent of the workforce, at the commencement of employment and will display a poster with the same language parameters regarding:

A) the employee’s right to earned sick leave and terms under the Healthy Workplaces Act;
B) the manner in which the sick leave is accrued and calculated
C) the non-retaliation provisions of the Act;
D) the employee’s right to file a claim against the employer; and
E) the means by which violations of the Act can be enforced.

The employer will keep records for four years of hours worked by each employee and earned sick leave taken by the employee. (The employer will also need a way of reinstating accrued unused sick leave in the event an employee is rehired within the twelve-month period since their separation. 

The Bill has several penalties, both monetary and non-monetary, listed for different violations under the Act.

UPDATE | 3.22.2021

The 2021 legislative session is due to end on Saturday, March 20^th. As of March 15^th, House Bill (HB) 20, Enacting the Healthy Workplaces Act, which requires certain employers to provide earned sick leave to their staff, had passed the House and was on its way to its third committee.

Amendments since the legislation have made its way through Santa Fe include:

• An extension of the effective date to July 2, 2022
• Clarification that an employer with a paid time off policy or a collective bargaining agreement that is more generous and is used for the same purposes and under the same terms and conditions under the Act do not require that the employer provide additional time
• Language to allow the employer to decide on one of several methods for determining the twelve-month period in which the earned sick leave may be used

HB 96 Criminal Records and Public Employment is a bill that outlines criteria a public employer cannot consider in hiring decisions. (The Act also has a provision for licensure.) As of March 13^th, this bill had also passed the House and was on to its third committee with a Do Pass recommendation. The following items are still listed as reasons which cannot be considered:

• Records dismissed, expunged, or pardoned
• Juvenile adjudications
• Convictions that are “not recent enough and sufficiently job related to be predictive of performance in the position sought”

Amendments remove misdemeanors involving moral turpitude but include felonies where the criminal conviction directly relates to the particular employment, trade, business, or profession. The amendments also delineate certain convictions in the field of teaching and childcare where the employer has a right to refuse employment “regardless of rehabilitation.”

This Act will likely require that the employer support their decision based on documented duties and responsibilities. Southwestern HR Consulting can help you in your review of job descriptions to ensure your descriptions accurately reflect the requirements of the position.

UPDATE | 3.11.2021

New Mexico Legislative Update!

HB 122 is a bill relating to increasing the Health insurance premium surtax beginning January 1, 2022 and distributing a portion of that revenue to a Health Care Affordability Fund. The Bill states it will “reduce premiums for small businesses and their employees purchasing health care coverage in the fully insured small group market.”

As many of you may have heard, House Bill 20, The Healthy Workplaces Act, passed another committee on March 9^th after recently receiving minimal amendments in the House. The City of Albuquerque had rescheduled the hearing of a similar bill until this last Monday. The agenda was updated to reflect a vote on extending discussion of their bill until early April.

UPDATE | 3.3.2021

As everyone knows, we have been tracking the 2021 New Mexico Legislature. We will continue doing so but as many of the bills are in committee, we are providing you with a recent EEOC update instead.

The EEOC has just released its most recent enforcement and litigation statistics. The agency received 67,488 charges in 2020 (Federal year ending September 30, 2020). Over the last year of data, EEOC obtained $439.2 million for claimants through voluntary resolutions and litigation. Specifically, claimant recovery through litigation was the largest in 16 years. 

EEOC Retaliation claims are still the most cited claim. Monetary benefits totaled $214.9 Million, more than any other year on the table which covers 1997-current. (The next three cited claims are race, sex, and age, in that order.) This data illustrates the critical importance of employee treatment. An employee may not be successful on a claim of discrimination. However, based on treatment subsequent to making a complaint, an employee can be successful on the retaliation claim. Training for your managers and supervisors is the first line of defense in averting issues that could lead to claims and demonstrating that you have taken the responsibility to train your employees appropriately in the event you do get a claim.

UPDATE | 2.26.2021

Welcome to this last week in February. The introduction of new bills in the New Mexico Legislature stopped on Thursday, February 18^th but the bills continue to make their way through the Legislature.

House Bill (HB) 268, Coronavirus and Workers’ Comp, is a bill with recent activity. It was introduced on February 9^th and on February 19^th, passed its first committee with amendments.

This bill covers employees in declared essential businesses, public safety, and schools, or any employee who has worked in a business permitted to operate with limitations pursuant to a public health order. It is applicable to employees in these categories who have been required to physically work in the business up to twenty days before the diagnosis of coronavirus. This bill makes a presumption that the virus arose from the course of employment. In this case, the employee would have to establish, through the preponderance of the evidence, that the employer has not strictly complied with the public health order.

The claim is stopped if the employer’s testing and tracing plans have been approved by the Department of Health (DOH). Employers will have the ability to rebut the claim.

HB 82, Historically Underutilized Businesses, has passed several committees and ultimately the House of Representatives on February 22^nd, after amendments. This bill provides preference to underutilized businesses (fifty percent ownership by women or minorities) by State agencies. The company has to have an average of no more than $5M in gross revenues or an average of no more than fifty employees over the course of the preceding three years. The business must be certified by the taxation and revenue department as a resident business and that it meets the requirements to be considered an underutilized business under the bill.

UPDATE | 2.18.2021

The last day to introduce new bills for the 2021 legislature is February 18^th and as of February 16, 2021, there were 283 House bills and 382 Senate bills. The session ends at noon on March 20^th. Our legislature will be working through these bills over the next four weeks.

In an update to the Healthy Workplaces Bill (HB20), a substitute Bill has been introduced by the Labor, Veterans’ and Military Affairs Committee. A side-by-side comparison of the two proposed bills shows a significant number of changes. (This is not an all-inclusive list. If you are interested in learning more about HB20, we recommend you read the text in the two proposed Bills.) Below are some highlights:

• The definition of employee on the bill removes the eighty (80) hour requirement of employment and adds part-time, seasonal, and temporary employees including individuals performing domestic service in a private home.
• The burden of proof to show that an individual is an independent contractor was changed to fall upon “the person for whom the work is performed.”
• Language was added in the definition of a family member to include a domestic partner and a domestic partner’s family members as outlined in the proposed bill.
• Additional detail was provided related to public health emergencies.
• Burden of proof for civil actions is noted.
• Misclassifications of an employee as an independent contractor is addressed. The language notes the various offices to which the division will make its report of the misclassification, including the IRS.

UPDATE | 2.12.2021

In keeping you informed about the progress of HR Bills during this 2021 Legislative Session:

House Bill 38, the Paid Family and Medical Leave, has been given a committee recommendation. The second committee review listed is with the House Judiciary Committee. This is the bill I discussed in my January 25 post that is paid through fund contributions by the employee and the employer. We’ll be monitoring movement of the bill as it works its way through.

In another family friendly initiative, HB 72, Family Friendly Workplace Education and Training, proposes a $500,000 appropriation to Workforce Solutions “for education and training for family-friendly workplace policies.” As of the last update, the website showed that “a committee recommendation has been announced by the House of Representatives, but the report (had) not been formally adopted by the body.”

HB  96, Criminal Records and Public Employment, also has a committee recommendation but hasn’t been formally adopted. The legislation outlines added circumstances under which an individual’s criminal record would not be considered including, “convictions for a crime that is not recent enough and sufficiently job-related to be predictive of performance in the position sought, given the position’s duties and responsibilities.”

UPDATE | 2.5.2021

As a follow-up to last week’s blog on proposed leave bills and the City ordinance, the February Council Meeting for the City of Albuquerque voted to hold the final vote on O-29-39 (Healthy Families and Workplace Ordinance) until March 1, 2021. It seems likely that the City is waiting for the outcome of the several proposed bills that are sitting at the legislature.

In addition, HB 110, the bill on minimum wage, was announced by the House of Representatives as having been given a committee recommendation. The bill removes certain classifications of individuals who would be exempt to the legislation and changes the previously scheduled increases for 1/1/22 and 1/1/23 which are currently slated to be $11.50 per hour and $12.00, respectively. The proposed change for 1/1/22 is to increase the minimum wage to $12.00 with an increase to $15.00 on 1/1/24. The Bill has a provision for a cost-of-living increase beginning 1/1/25 and for each successive year thereafter.

According to the legislative website the “Adoption of these actions will be considered by the House at a later date.” We will continue to monitor this bill.

The 2021 Legislature has just recently started and we already have at least 22 bills which seem to be related to Human Resources that have been introduced. This week’s highlight is on three bills related to time off.

Links:

HB 20 HEALTHY WORKPLACES ACT

HB 37 PAID SICK LEAVE ACT

HB 38 PAID FAMILY AND MEDICAL LEAVE ACT

The Albuquerque City Council recently considered an ordinance (O-20-39) similar to HB20, the Healthy Workplaces Act. The vote on the ordinance was put on hold at the end of the year and postponed until the full Council Meeting in February. While similar proposals have been made both at the City level and the State level in the past, this issue seems to have gained momentum due in part to the pandemic. It is possible that given the other leave related bills that have been introduced in this long session that the postponement may be extended in the next City Council Meeting.

The bills introduced at the State Legislature, while similar, have some important distinctions. While all bills cover time off for care of the individual and covered family members, House Bill 20, Healthy Workplaces Act, requires employers to provide earned sick leave to individuals employed in New Mexico for more than eighty hours in a twelve-month period. Accruals differ based on the number of employees. House Bill 37, Paid Sick Leave Act, provides for an accrual maximum of fifty-six hours of sick leave while House Bill 38, Paid Family & Medical Leave Act, provides for a trust funded by employee and employer contributions which is to be administered by the Workforce Solutions Department.

Please see the links above for more specific information related to the bills.

Written by | Magdalena Vigil-Tullar

HR Consultant | MBA, SPHR, SHRM-SCP, CLRP

Phone: 505-270-7494 | Email: magdalena@swhrc.com

PO Box 14274 | Albuquerque, NM 87191