TITLE 11 LABOR
AND WORKERS COMPENSATION
CHAPTER 1 LABOR
GENERAL PROVISIONS
PART 6 HEALTHY
WORKPLACES
11.1.6.1 ISSUING AGENCY: Labor Relations Division (LRD) of the New
Mexico Department of Workforce Solutions (NMDWS).
[11.1.6.1 NMAC
– N, 07/01/2022]
11.1.6.2 SCOPE:
Employers and employees within the state of New Mexico.
[11.1.6.2 NMAC
– N, 07/01/2022]
11.1.6.3 STATUTORY AUTHORITY: Section 50-17-9 NMSA 1978 authorizes the
labor relations division of the workforce solutions department to coordinate
implementation and enforcement of the Healthy Workplaces act and to promulgate
appropriate rules to implement that act.
[11.1.6.3 NMAC
– N, 07/01/2022]
11.1.6.4 DURATION: Permanent.
[11.1.6.4 NMAC
– N, 07/01/2022]
11.1.6.5 EFFECTIVE DATE: July 1, 2022, unless a later date is
cited at the end of a section.
[11.1.6.5 NMAC
– N, 07/01/2022]
11.1.6.6
OBJECTIVE: To implement the complaint process
articulated in Sections 50-17-1 NMSA 1978 through 50-17-12 NMSA 1978, including
a process for investigating and resolving complaints alleging violations of the
Healthy Workplaces Act.
[11.1.6.6 NMAC
– N, 07/01/2022]
11.1.6.7 DEFINITIONS: All definitions contained in Section 50-17-2
NMSA 1978 are incorporated herein by reference.
Additionally, as used in these rules:
A. “Frontloading” means when an
employer elects to grant employees earned sick leave the employee could accrue
within the year.
B. “Calendar year” means January 1st
of any year through December 31st of that same year.
C. “Complainant” means an
individual who believes they have been adversely impacted by violations of the
Healthy Workplaces Act or these rules or an individual who was subjected to any
of the retaliatory actions prohibited by the Act and files a complaint with the
division alleging such violations.
D. “Foreseeable” means an employee is aware of the need to
use earned sick leave seven or more days before such use.
E. “Good cause” means a substantial
reason, one that affords a legal excuse, or a legally sufficient ground or
reason.
F. “Violation(s)” means any violation
of the Healthy Workplaces Act or these rules, including retaliation.
[11.1.6.7NMAC
– N, 07/01/2022]
11.1.6.8 ACCRUAL AND USAGE
A. An employer may
voluntarily frontload earned sick leave to an employee; however, the employer
may not recoup any used frontloaded leave through payroll deductions even if
the employee signs a written agreement authorizing the employer to do so or if
the employee is separated before accruing the frontloaded leave.
B. Hours worked in excess of 40 hours per seven-day work week do not accrue
earned sick leave at a rate greater than one hour of earned sick leave for
every 30 hours worked unless an employer chose a higher accrual rate for its
employees or if required under the terms of any applicable collective
bargaining agreement.
C. An employer cannot deem an employee’s hours to be
“cut” to a lower number due to taking earned sick leave. The employer must pay the employee all earned
sick leave used according to the employee’s regularly scheduled hours. If the number of hours that the employee
works fluctuate from week to week, the employer shall use the average number of
hours worked by the employee during the preceding two weeks when paying earned
sick leave.
D. Per diem employees may use earned sick leave for hours
they were scheduled to work or for hours they would have worked absent a need
to use earned sick leave. For per diem
employees or employees with indeterminate shift lengths (e.g., a shift whose
length is defined by employer needs), an employer shall base the hours of
earned sick leave used upon the hours the employer had a replacement employee
for the same shift. If this method is
not possible, the hours of earned sick leave shall be based on the hours worked
by the employee when the employee most recently worked the same shift.
E. Earned sick leave must be paid on the same scheduled
payday as regular wages.
F. Employers shall
retain records documenting hours worked by employees, sick leave accrued or
earned by employees and earned sick leave taken by employees. All records shall be maintained for a minimum
of 48 months from the date the record was created. Employers shall produce these records for
inspection upon request by the division.
G. Employers must
provide employees with an accurate year-to-date written summary of earned sick
leave accrued and used at least once every calendar quarter. This may be done electronically, including by
email, website, mobile application or other reasonable
method. If employers include this
information on pay records or earnings statements provided to employees
according to their normal pay schedule, employers are deemed in compliance with
this provision.
H. Tipped
Employees: Employees who are ordinarily
paid less than the full minimum wage due to a “tip credit” must receive the
full state or local minimum wage (whichever is greater) when using earned sick
leave.
I. Salaried
Employees: When using earned sick leave,
salaried employees must receive their regular salary converted to an hourly
rate based on the employee’s regular work week and weekly salary amount. For example, someone who normally earns a
weekly salary of $1,000 and whose normal work week consists of 40 hours, would
be entitled to be paid $25 per hour for any earned sick leave used ($1,000
divided by 40). If the individual normally
works 30 hours per week, then their hourly rate would be $33.33 for any earned
sick leave used ($1,000 divided by 30).
For a salaried employee whose work hours fluctuate from week to week,
the hourly rate would be determined by dividing their weekly salary by 40.
J. Employees paid
on task, piece or commission basis must receive the greater of their hourly or
salary rate or the state or local minimum wage.
K. Employers are not required to pay an employee for sick
leave accrued or earned pursuant to the requirements of the Healthy Workplaces
Act that was not used upon the employee’s termination, resignation, retirement,
or other separation from employment.
L. Employers are
not required to permit more than 64 hours of unused earned sick leave to carry over
year-to-year.
M. If an employer requires an employee to provide
documentation when the employee’s use of earned sick leave results in an
absence of two or more consecutive workdays, the employee shall be allowed 14
days from the date they return to work to provide such documentation.
N. Employers may
elect a different 12-month period for benefits to be used for employees covered
by a collective bargaining agreement than for employees not covered by a
collective bargaining agreement.
[11.1.6.8 NMAC
– N, 07/01/2022]
11.1.6.9 COMPLIANCE MEASURES: Compliance assurance measures available to
the division include the following:
A. Investigations of alleged violations of the Healthy
Workplaces Act upon complaints filed by individuals;
B. interviews of employers, their managers and employees
and any other witness who may have relevant information;
C. requests for
production of records and other information from employers;
D. administrative
subpoenas for records and other information from employer, or for the taking of
depositions from employers, their managers and other potential witnesses;
E. audits of employer records of the kind described in
Section 50-17-9 NMSA 1978;
F. education and outreach efforts regarding the
requirements of the Healthy Workplaces Act; and
G. directed
Investigations: When the division has
credible information about alleged violations of the Healthy Workplaces Act that
affect multiple employees working for an employer, the director may, in their
sole discretion, direct a comprehensive, workplace-wide investigation into the
earned-sick-leave practices of that employer.
All the investigatory and compliance tools available to the division by
law can be used in a directed investigation into alleged violations of the
Healthy Workplaces Act. If a directed
investigation results in a finding of violations of the Act, the division may,
in its sole discretion, file a civil action to enforce compliance with the Act,
including payment of any earned sick leave payment owed, damages and attorney’s
fees.
[11.1.6.9 NMAC
– N, 07/01/2022]
11.1.6.10 NOTICE BY EMPLOYERS:
A. Employers shall give written or electronic notice to
an employee at the commencement of employment of the employee’s rights to
earned sick leave; the manner in which sick leave is accrued and calculated;
the terms of use of earned sick leave as guaranteed by the Healthy Workplaces
Act; that retaliation against employees for using sick leave is prohibited; the
employee’s right to file a complaint with the division if earned sick leave
accrual or use is denied or if the employee is retaliated against; and all
means of enforcing the Healthy Workplaces Act.
This notice must be in English, Spanish or any other language that is
the first language spoken by at least ten percent of the employer’s workforce,
as requested by the employee.
B. Employers shall
display a poster containing the information required in Section A, above, in a
conspicuous and accessible place in each establishment where employees are
employed. The poster should be in
English, Spanish and in any language that is the first language spoken by at
least ten percent of the employer’s workforce.
[11.1.6.10 NMAC
– N, 07/01/2022]
11.1.6.11 COMPLAINTS: Individuals may
file complaints alleging violations of the Healthy Workplaces Act or these
rules, including retaliation, with the division.
A. Complaints must be submitted using a division-approved
form.
B. Complainants may
complete the form on their own or have an LRD employee assist in completing the
form based on the complainant’s statements in-person or by telephone. If the division provides
assistance in completing the form by telephone, the division shall mail
or email the unsigned form to the complainant to be reviewed, approved, signed,
and submitted to the division for filing.
The complaint form does not need to be notarized. The complainant may attach additional
information or documentation supporting the complaint, but this is not a
requirement.
C. Upon receipt of
the completed complaint form, the division will:
(1) review
the complaint to determine whether the division has jurisdiction;
(2) determine if more information from
the complainant is needed; and
(3) interview the complainant, if
necessary, to clarify any discrepancies, omissions, or errors in the complaint
form, and obtain additional information regarding the complaint.
D. If a complainant
is represented by an attorney, the attorney shall submit a written notice of
the representation to the division of said representation and shall also
indicate in that notice whether the division may communicate with the
complainant directly without the attorney being present. If the attorney fails to indicate anything in
this regard, it will be assumed the division is authorized to communicate
directly with the complainant without the attorney being present.
E. The complaint
form will give the complainant the opportunity to choose to correspond with the
division by email or regular mail. If
the complainant does not make a choice, the correspondence with the complainant
will be by regular mail.
F. The division
shall send complainants written notification summarizing the status of the
investigation by the complainant’s chosen correspondence method no less
frequently than every 90 days starting from the date the complaint is received
by the division.
G. The division
shall provide limited English proficient (LEP) complainants, employers
and witnesses with free language assistance services according to the NMDWS
language access plan throughout the complaint process.
[11.1.6.11
NMAC – N, 07/01/2022]
11.1.6.12 JURISDICTION: The division’s authority is limited to the
enforcement of the laws of the state of New Mexico. The division does not have authority to
enforce the laws of any other state. The
division may close a complaint that alleges violations of the Healthy Workplaces
Act for work performed outside the state of New Mexico, including work performed
entirely on tribal land.
[11.1.6.12
NMAC – N, 07/01/2022]
11.1.6.13 DEADLINE FOR FILING A COMPLAINT: All complaints alleging violations of the Healthy
Workplaces Act must be filed with the division within three years of when the
last alleged violation occurred. The
division will accept complaints for investigation in which any portion of the
alleged violation falls within the three-year time limit.
[11.1.6.13
NMAC – N, 07/01/2022]
11.1.6.14 CONFIDENTIALITY: The division will maintain the complainant’s
identity as confidential unless disclosure is necessary to facilitate
investigation or resolve the complaint or is otherwise required by law. Prior to disclosing the complainant’s
identity and to the extent practicable, the division will notify the
complainant before any such disclosure.
[11.1.6.14
NMAC – N, 07/01/2022]
11.1.6.15 CLOSURE OF COMPLAINTS: The division
may close any complaint alleging violations of the Healthy Workplaces Act after
the initial screening with no further investigation if the division determines
that it does not have jurisdiction, it is unable to identify complainant’s
employer after reasonable efforts have been made, or if no portion of the
alleged violations falls within a three-year time period. Upon closure, the division will send the
complainant a letter setting forth the reasons for closure.
[11.1.6.15
NMAC – N, 07/01/2022]
11.1.6.16 NOTICE OF COMPLAINT TO EMPLOYER:
Within 10 business days of receipt of the complaint, the division
shall send the employer a copy of the complaint form, any supporting
documentation received from the complainant, and a blank response form. The initial letter shall be mailed to the
last known address of the employer. The
notice to the employer will give the employer the opportunity to choose to
receive correspondence from the division by email or regular mail, but if the
employer does not make a choice, the correspondence will be sent by regular
mail.
[11.1.6.16
NMAC – N, 07/01/2022]
11.1.6.17 EMPLOYER REPRESENTATION: If
an employer is represented by an attorney at any
time during the investigation, the attorney shall submit a written notice to the
division of representation and shall also indicate in that notice whether the
division may communicate with the employer directly without the attorney being
present. If the attorney fails to
indicate anything in this regard, it will be assumed that the division is
authorized to communicate directly with the employer without the attorney being
present.
[11.1.6.17
NMAC – N, 07/01/2022]
11.1.6.18 RESPONSE BY EMPLOYER: The employer shall respond in writing to the
initial letter regarding the complaint within 10 business days of receipt. The employer shall also provide the division
with true and accurate copies of the records that are required to be maintained
by the Healthy Workplaces Act with respect to the complainant(s). The employer shall produce any other records
related to the complaint requested by the division. The employer may provide other records of its choosing in responding to the complaint but this is not
a requirement. In its discretion, the
division may grant an employer a reasonable extension to respond to the initial
letter if requested by the employer in writing specifically setting forth the
good cause upon which the request for an extension is based.
[11.1.6.18
NMAC – N, 07/01/2022]
11.1.6.19 REQUESTS FOR ADDITIONAL INFORMATION:
In its discretion, the division may interview the employer and other
witnesses to obtain additional information relevant to the investigation and
may issue an administrative subpoena to compel production of records necessary
to conduct the investigation if such records are not voluntarily provided by
the employer.
[11.1.6.19
NMAC – N, 07/01/2022]
11.1.6.20 REPLY BY COMPLAINANT:
If the employer disputes the alleged violation(s) and submits relevant
documentary evidence, the division shall allow the complainant an opportunity
to submit a written reply to the employer’s response along with additional
documentation. The complainant has 10
business days from the date of the complainant’s receipt of the employer’s
response to submit the reply. In its
discretion, the division may interview the complainant and other witnesses to
obtain additional information relevant to the investigation.
[11.1.6.20
NMAC – N, 07/01/2022]
11.1.6.21 SETTLEMENT BY PARTIES: At
any stage of the investigation, the division may schedule a settlement meeting
between the parties. The division may
inform the parties of its preliminary conclusions based on the evidence
reviewed, including any actual or statutory damages owed to the complainant for
violations of the Healthy Workplaces Act, as found by the division. If a settlement is reached, it shall be
reduced to writing and signed by the complainant and the employer. After the settlement is signed by both parties,
the division will close the investigation and advise the parties in writing
that the case is close to include the date the three-year statute of
limitations expires.
[11.1.6.21
NMAC – N, 07/01/2022]
11.1.6.22 ADMINISTRATIVE DECISION: The division shall complete its investigation
of a complaint and issue a written decision if a settlement is not reached, or
if a settlement is reached but the employer fails to comply with the terms of
the settlement, and a party submits a written request to the division to reopen
prior to the expiration of the three year time limit
outlined in NMAC 11.1.6.13. After
completing its investigation the division shall issue
an administrative decision on the complaint.
The decision shall:
A. be issued within
180 days from the date the complaint was received;
B. be in writing
and set forth findings of facts and conclusions of law, including a calculation
of damages owed, if any;
C. inform the
parties that if they disagree with the decision, there is no right of
administrative appeal;
D. inform the
parties whether the division will file a civil action to enforce its
administrative decision; and
E. inform
complainants of their private right of action pursuant to Subsection B of
Section 50-17-10 NMSA 1978.
[11.1.6.22
NMAC – N, 07/01/2022]
11.1.6.23 CIVIL ACTIONS BY THE DIVISION: Although the division may, in its sole
discretion, bring a civil action for violations of the Healthy Workplaces Act,
the division will do so only in cases that it deems appropriate based on its
enforcement priorities, including but not limited to, repeat violations by a
particular employer or problematic industries where systemic and/or abusive
practices have been identified through investigation by the division. The division’s decision on whether to bring a
civil action under the Healthy Workplaces Act is final and not subject to any
right of appeal or review.
[11.1.6.23
NMAC – N, 07/01/2022]
11.1.6.24 SUBPOENA POWERS: The division may issue a subpoena compelling
any witness, including but not limited to the employer and the complainant, to
appear for the taking of a deposition or a recorded statement under oath, and for the production of any documents relevant to the
complaint at the time that the deposition or recorded statement is taken. A recorded statement may be taken before a
qualified court stenographer, but it may also be recorded digitally or on audio
tape or video tape.
[11.1.6.24
NMAC – N, 07/01/2022]
11.1.6.25 EMPLOYER RECORDS: Section 50-17-7 NMSA 1978 requires employers
to keep records documenting hours worked by employees and earned sick leave
taken by employees for the 48-month period immediately preceding the date the
record was created. If the division
finds, during the course of its investigation, the
employer did not maintain and produce the required records, or that the records
are inaccurate or incomplete, the division may base its calculation of damages
owed on other reasonable, credible evidence, including but not limited to the
complainant’s estimates.
[11.1.6.25
NMAC – N, 07/01/2022]
11.1.6.26 CONFLICTS WITH STATE LAW: In
the event any of the rules and regulations set forth herein conflict with any
applicable state law, the state law shall control.
[11.1.6.26
NMAC – N, 07/01/2022]
11.1.5.27 CIVIL ACTIONS: The division
may close a complainant’s file and take no further action if the complainant
files a separate civil action against the employer in a court of competent
jurisdiction asserting the same legal claims that are the subject of the
division’s investigation.
[11.1.6.27
NMAC – N, 07/01/2022]
11.1.6.28 REOPENING AN INVESTIGATION: A
complainant or employer may request in writing a reopening of the investigation
of a complaint upon a showing of good cause for doing so. Examples of good cause include, but are not
limited to, failure of an employer to comply with the terms of the settlement,
or the discovery of new, previously undisclosed evidence that would have
changed the result of the previous determination. Except in the case of unfulfilled settlement
terms, the division’s determination of whether good cause to reopen exists is
final and shall not be subject to any right of appeal or other review. All requests for reopening must be received by
the division before the three-year time limit referenced in NMAC 11.1.6.13
expires. Reopening requests received
after the three-year period expires will not be considered. Upon reopening, the division may pursue any
investigatory steps available under the law and pursuant to these regulations
and may affirm, modify, or reverse, in whole or in part, any previous decision
issued.
[11.1.6.28
NMAC – N, 07/01/2022]
11.1.6.29 STANDARD OPERATING PROCEDURES: The
division may adopt standard operating procedures to provide additional
instructions for its employees in the performance of their duties and
responsibilities.
[11.1.6.29
NMAC – N, 07/01/2022]
History of 11.1.6
NMAC: [RESERVED]