Recent Blog Posts

EEOC Issues Criminal Background Checking Enforcement Guidance

Alice Kilborn, PHR — Tue, 15 May 2012 21:41:00 GMT

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued Enforcement Guidance on the use of criminal background check information in employment decisions. The new guidance took effect immediately.

For a helpful summary of the guidance, the EEOC issued a list of Frequently Asked Questions along with their detailed Enforcement Guidance.

If you have questions about how these changes impact you personally or your organization, don't hesitate to contact one of the attorneys at Moody & Warner, P.C.

Q&A: Voting Time in New Mexico

Whitney Warner — Fri, 13 Apr 2012 20:41:00 GMT

Q & A on Time for Voting in NM

Question:	How much time do employers have to give employees to vote and does it have to be paid?
Answer:	Employees can take two hours out of the workday to vote without being "liable to any penalty" for the absence. The employer can specify when the hours are to be taken during the work day. The employee must receive their regular wages for the day (even if they take off two hours to vote). However, if the employee's work day begins more than two hours after the time the polls open, or ends more than three hours before the polls close, the employee does not have a right to leave work to vote during the work day.
Question:	Can the employer change the start or end of the work day on voting day?
Answer:	Yes, an employer can adjust the work schedule to provide two hours before work or three hours after work. Employees must receive their full pay for the day.
Question:	What is the source of this information?
Answer:	New Mexico Statute § 1-12-42, and NM Court of Appeals decision State v. Kenneth P. Thompson Co., 103 N.M. 453, 708 P.2d 1054 (Ct. App. 1985).
This is not legal advice. It is intended only as general information about the subject matter.

Class Action Waivers for Employees Illegal

Chris Moody — Tue, 10 Apr 2012 22:18:00 GMT

Employees who have suffered discrimination at the hands of their employers, or who have not been paid all the compensation they are due, have traditionally been able to band together in groups and seek redress in court. Banding together all employees with similar claims in a class action means savings in attorney fees and frustrates the divide and conquer strategy of many employers. Going to court provides a neutral forum where claims can be decided by juries of citizens just like you and me.

This system has been under attack by employers. First, they persuaded the courts that arbitration is just as good as a real court even though arbitrators (private judges) are no substitute for a jury of your peers, are not required to apply the law to your case and are not subject to correction by an appellate court when they get things wrong. Second, they persuaded the courts that it was OK to ban group cases such as class actions even though many employment cases could not be brought effectively and economically except as class actions.

Now a federal agency has come to the rescue—at least partially—in a case called D. R. Horton. The National Labor Relations Board (“NLRB”) enforces the National Labor Relations Act (”NLRA”), the law that regulates labor-management relations, but the law applies to most employers regardless of whether their employees are represented by a union.

One of the rights in the NLRA that all non-supervisory employees of covered employees have is the right to engage in “concerted” activity for mutual aid and protection. “Concerted” means acting as a group and the NLRB decided that employers violate the law when they require employees to waive or forgo the right to enforce their rights through group actions, such as class actions. The NLRB decision still allows employers to require employees to bring their legal claims in arbitration rather than court, but what employers cannot do is prevent employees from using class actions, whether in court or arbitration.

Employers frequently use class actions to advance their right to unpaid overtime or to remedy discrimination on the job. The NLRB’s decision in D.R. Horton makes agreements to forgo class actions illegal, at least as they apply to employees of employers over whom the NLRB has jurisdiction (75% of employees in the U.S.), with the result that this procedure so important to partially redress the imbalance in power between workers and companies will remain available to employees.

So What Was Actually Signed? Final New Mexico Legislative Update for 2012

Alice Kilborn, JD PHR (law clerk) — Thu, 15 Mar 2012 18:10:00 GMT

The short session of the New Mexico Legislature is over and the Governor has cleared her desk. So now that the dust has settled, let's take a look which what bills have actually become law:

HB2: General Appropriations Act
- Provided a 1.75% pay increase for government employees and teachers
- Increased Economic Development Department job training incentive program funds from $1.2 million to $6.5 million

HB10: Veteran Employment Tax Credit
- New Mexico businesses who hire military veterans into full-time positions within two years of receipt of an honorable discharge may claim a $1,000 tax credit for tax years 2012-2016.

SB32: Temporary Unemployment Fund Contributions
- New Mexico will be under Schedule 1 throughout 2012
- New Mexico will be under Schedule 2 throughout 2013

HM15: Unemployment Compensation Task Force
- This memorial requests that the Governor establish a task force to examine options for improving the unemployment compensation program and its future viability

SB81: Health Insurance for Prescription Eye Drops
- Insurance coverage must include prescription eye drops and refills

For complete information regarding legislation introduced, considered, and signed into law see the New Mexico Legislature's website or Governor Susana Martinez' website.

If you have questions about how these or any other employment laws apply to you or your business, contact one of the experienced lawyers at Moody & Warner, PC.

The NLRB and Social Media in 140+ Characters

Alice Kilborn, JD PHR (law clerk) — Fri, 17 Feb 2012 20:00:00 GMT

While Facebook, Twitter, and other social media sites may seem like the final frontier, the National Labor Relations Board (NLRB) has issued a number of opinions recently addressing the topic. Employers are now limited in the ways that they can monitor, react to, and restrict social media use by employees. In light of this burgeoning area of NLRB decision-making the NLRB Acting General Counsel has issued two summary reports to aid people in understanding this complex area of law. The first report is current through August 18, 2011, while the second report covers 14 additional decisions and is current through January 25, 2012.

Have questions about social media in the workplace? Contact one of the attorneys at Moody & Warner, P.C.!

Is your paperwork in compliance? GINA recordkeeping obligations

Alice Kilborn, JD PHR (law clerk) — Mon, 13 Feb 2012 19:30:00 GMT

The Equal Employment Opportunity Commission (EEOC) has issued final regulations regarding record keeping requirements under the Genetic Information Nondiscrimination Act (GINA) to be effective April 3, 2012. Under the new record keeping requirements, GINA documents are to be retained in the same manner that currently applies documentation relating to Title VII of the Civil Rights Act (Title VII) and the Americans with Disabilities Act (ADA).

Need a record retention refresher?

All Personnel and Employment Records made or used (including, but not limited to, requests for reasonable accommodation, application forms submitted by applicants, and records dealing with hiring, promotion, demotion, transfer, lay-off or termination, rates of pay, compensation, tenure, selection for training or apprenticeship, or other terms of employment) must be preserved for the following periods:
1. Private employers must retain such records for one year from the date of making the record or the personnel action involved, whichever occurs later, but in the case of involuntary termination of an employee, they must retain the terminated employee’s personnel or employment records for one year from the date of termination.
2. Educational Institutions and State and Local Governments must retain such records for two years from the date of the making of the record or the personnel action involved, whichever occurs later, but in the case of involuntary termination of an employee, they must retain the terminated employee’s personnel or employment records for two years from the date of termination.
Other Records must be retained for the following periods:
1. Labor Unions which are “referral unions” must retain all membership and referral records (including applications for same) for a period of one year from the date of making the record.
2. Apprenticeship Committees that control apprenticeship programs must retain all apprenticeship records, including, but not necessarily limited to, requests for reasonable accommodation, test papers completed by applicants, and records of interviews, for a period of two years from the date of making of the record.
Records Relating to a Charge of Discrimination

Where a charge of discrimination has been filed under Title VII, the ADA, or GINA, or where a civil action has been brought by the Commission or the Attorney General, the respondent private employer, state or local government employer, educational institution employer, labor union, or apprenticeship committee must retain all records related to the charge or action until final disposition of the charge or action. The date of final disposition means the date of expiration of the statutory period within which the aggrieved person may bring an action in a U.S. District Court or, where such an action has been brought, the date on which such litigation is terminated.

What is GINA again?

GINA protects job applicants, current and former employees, labor union members, apprentices, and trainees from discrimination based upon genetic information. GINA applies to all employers with 15 or more employees, employment agencies, labor unions, joint labor-management training programs, and federal sector employers.

For more information about GINA compliance see http://www.eeoc.gov/laws/types/genetic.cfm orcontact the attorneys at Moody & Warner, PC.

What's Happening in Santa Fe? New Mexico Legislative Session Update

Alice Kilborn, JD PHR (law clerk) — Fri, 10 Feb 2012 20:00:00 GMT

The Second Session of the 50th New Mexico Legislature will draw to a close in the next few days and there are still a number of employment law related bills to be considered:

SB32: Temporary Unemployment Fund Contributions
- Employer contributions to the fund would be set at Schedule 1 through 12/31/2012, increasing to Schedule 2 through 12/31/2012. The bill provides for executive review and adjustment of the rate to a Schedule 3 in the event that the fund falls below 30% of the total amount of benefits paid out in 2011.
- PASSED the Senate
- Currently before the House Labor and Human Resources Committee
HB194: Unemployment Compensation Fund Contributions
- Employer contributions to the fund would be set at Schedule 2. The bill would also create a legislatively appointed bi-partisan 9 person advisory committee to make recommendations regarding changes to the Schedule.
- Currently before the House Judiciary Committee
HJR28: Minimum Wage Increase
- Creates a Constitutional Amendment establishing that the New Mexico Minimum Wage be adjusted annually based upon the U.S. Department of Labor Consumer Price Index.
- Given a DO PASS by the House Labor and Human Resources Committee and the House Voters and Elections Committee.
- Up for vote TODAY in the House. If it passes in the House, the next step is passage in the Senate and then onto the ballot in the next general election.
HB10 & HB 154: House Substitution: Veteran Employment Tax Credit
- $1,000 tax credit per veteran hired within 2 years of receipt of honorable discharge. Employers may receive partial year-prorated amount for partial year employment. Under the bill full-time employment is defined as 40 hours per week.
- Currently before the House Taxation and Revenue Committee
SB16: House Substitution: State Graduate Employment Tax Credit
- $5000 tax credit for hiring a qualified New Mexico graduate on a full-time basis.
- Currently before the House Taxation and Revenue Committee
HB8: Development and Training Programs
- $10 million appropriation for in-plant training for new or expanding New Mexico businesses
- House Business and Industry Committee gave it a DO PASS
- Currently before the House Appropriations and Finance Committee
SB6 & SB278: NM Health Insurance Exchange Act
- Both bills establish a framework for a Health Care Exchange as required under Patient Protection and Affordable Care Act (PPACA) by 2014.
- Neither bill has any traction - both are currently in the Senate Committees Committee
SB30: State Agency Sunshine Portal Requirement
- As currently amended it would require all private sector business who do businesses with the state to disclose all employee wage information for public inspection via the sunshine portal.
- PASSED the Senate.
- Currently before the House Labor and Human Resources Committee

Legislation can move very rapidly in the New Mexico Legislature! For updates on these and other pieces or proposed legislation, follow us on twitter at @nmlawborlaw.

Welcome to our Employment Law Blog

Employment Law Attorney — Thu, 10 Nov 2011 00:20:00 GMT

We are pleased to announce the launch of our Employment Law Blog with an RSS feed available at /Blog/Entire-Blog-Feed/RSS.xml