"I saw the head of NOW--National Organization of Women--saying that women still only make 70 cents on the dollar to every man. I am not sure I'm going to believe that. Women are notoriously bad at math." Bonnie McFarlane
The New Mexico House and Senate ignored Ms. McFarlane. During the last legislature they passed HB 216 the "Fair Pay for Women Act" ("FPWA") almost unanimously--with the House voting 64-0 and the Senate 31-2 in favor. Governor Martinez signed the bill and it will go into effect on June 1, 2013. From the vote one can see that the legislature reflects the broad support for the “equal pay” concept. Unfortunately, the Act carries some unneeded baggage which will cause litigation.
Despite its title, the Act is gender neutral, prohibiting discrimination between "employees of the opposite sex...”. There are exceptions such as compensation based established seniority systems, merit systems and others. The Act applies to any employer with more than four employees. It is unclear the extent to which it applies to the State or political subdivisions. Although the State is listed as a "person" under the Human Rights Act, it is not listed in the FPWA.
The Act uses the same standards as the federal Equal Pay Act, ie. whether the jobs require "equal skill, effort and responsibility" and are performed under "similar working conditions". But important questions will have to be decided by the New Mexico courts, such as who has the burden of proof. One would expect the New Mexico courts to look to the federal courts for guidance on interpretation.
A fertile ground for litigation may be in the Act's retaliation provisions which prohibit discrimination against employees for asserting a claim, for assisting another person to assert a claim or for "informing another person about employment rights or other rights provided by law." Robert Tinnin, a leading New Mexico employment lawyer in Albuquerque, has questioned whether informing another person about employment rights might be broader than information about the Act--e.g. about union organization or sex or age discrimination.
The most mysterious portion of the Act is its "two track" remedy provisions. The claimant under the Act has the choice of proceeding administratively by first going to the Human Right Division under the Human Rights Act or going directly to court for damages and injunctive relief.
There are numerous questions raised by Tinnin on the dual track procedure. The court option clearly provides for treble damages but does not expressly provide for a jury trial (as does the Human Right Act). The court option also provides for punitive damages. If the claimant uses the Human Rights Act (which can end up in court) does she get treble damages or other court option remedies?
Most troubling is the provision which would permit the claimant to seek remedies on behalf of "all employees similarly situated." That language is the magic language of class action litigation. One can see a claimant employed by a large national or regional bank filing what amounts to a FWPA class action in New Mexico growing out of purely New Mexico circumstances.
Banks should look at their policies to insure equal pay for everyone similarly situated.
The New Mexico Act has some real litigation risk for employers because of its unknowns. Documentation should be carefully drafted and reviewed.
The New Mexico Attorney General continues to view the financial services industry as fair game for his current “consumer protection” crusade—perhaps as grist for his 2014 campaign for Governor. He has just filed a series of separate suits in Santa Fe County accusing major credit card companies of “slamming”, i.e. misleading sales of credit card protection plans, etc. to consumers. The Santa Fe New Mexican listed the named defendants as JPMorgan Chase & Co. Barclay’s Bank of Delaware, Capital One Bank, Bank of America Corp., Citygroup, GE Capital Retail Bank and HSBC Bank Nevada . There are others. The Attorney General has associated the Branch Law Firm of Albuquerque and an Arkansas firm, the latter presumably with expertise in this type of litigation. In the era of Attorney General Patsy Madrid there were several private law firms who were known to contribute to her future electoral ambitions and were often chosen as outside counsel on cases such as this. It is unknown if the practice has resurfaced with this Attorney General. The Attorney General sued under the Unfair Practices Act (“UPA”) and seeks $5000 per violation. There is some question if the Attorney General is entitled to attorney fees, although that remedy is sought.
The Attorney General’s latest consumer protection crusade brings up interesting pieces of failed legislation from the 2013 Session. The Attorney General sought to amend the existing UPA to provide for an award of attorney fees in UPA cases which he files. His effort, SB270, failed. In a similar vein, the Attorney General sought legislative approval in HB531 to authorize him to hire outside counsel on a contingent fee basis. This Bill also failed.
As a postscript to an earlier Blog, the Governor vetoed SB159 which provided that when a contract provided for an award of attorney fees, the opposing party had a right to seek attorney fees even though not provided in the contract and that right could not be waived. Since most bank documents provide for attorney fees the veto is welcome.
I trust you read that one Congressional Committee Chair refused to let Richard Cordray, head of the Consumer Financial Protection Bureau testify at a hearing, observing that the D.C. Federal Courts had previously voided “recess” appointments identical to his recess appointment.
Take care, Do Good.
Marshall G. Martin
Comeau, Maldegen, Templeman & Indall, LLP
505-982-4611 (office)
505-228-8506 (cell)
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