My arbitration, mediation and ALJ practice is booming these days, as is my guardian ad litem (GAL) practice. As a result, I am woefully behind on my blogs, with a pile of items to review and write up. I'm not sure how the really prolific--or even moderately prolific--bloggers do it, once their practice picks up. In any event, here is a belated summary of recent New Mexico employment law cases.
River v. Flint Energy and Liberty Mutual Insurance Company, 2011-NMCA-119, cert den. or not applied for.
Worker's attorney fees apportioned equally between worker and employer/insurer, rather than assessed entirely to the employer, where worker recovered more at trial than he'd previously offered to take in settlement, but worker's settlement offer did not comply with the Workers Comp Act. Specifically, the offer did not reference the section of the Act providing for shifting of fees when a verdict is greater than a prior settlement offer, or reference any language therein. See Section 52-1-54(F). Under these circumstances, the offer did not adequately put the employer on notice that the letter was intended to trigger the fee-shifting provisions of Section 21-1-54(F).
Lobato v. State of New Mexico Environment Dept., 2012-NMSC-002.
NM Human Rights Division's official Charge of Discrimination form is misleading and fails to provide an adequate opportunity for filers to exhaust administrative remedies, where the form instructs filer to give the name and address of the agency believed to have discriminated against the filer, but not of individual actors. The form does not comply with the Human Rights Act, which requires "the name and address of the person alleged to have engaged in the discriminatory practice." See Section 28-1-10(A). Requesting "particulars" generally, or a subsequent detailed intake questionnaire, do not overcome this defect. As a remedy, exhaustion of administrative remedies is not required and the plaintiff filer's right to a judicial remedy is preserved.
Mascarenas v. City of Albuquerque, 2012-NMCA-031, cert. not applied for.
City employee terminated for unauthorized leave, where she failed to submit doctor notes necessary to reauthorize her FMLA leave. Hearing Examiner found she was terminated for just cause, and Personnel Board affirmed that decision 3-1. She appealed the due process hearing to District Court as part of a claim for breach of contract, and violation of the FMLA, and all claims were dismissed. She then filed a single appeal to the Court of a Appeals. The Court of appeals concluded the due process administrative appeal was not timely filed by writ of certiori; it further agreed with the District Court that the breach of contract claim was barred by res judicata, and the FMLA claim was barred by collateral estoppel.
Mascarenas v. City of Albuquerque, 2012-NMCA-031, cert. not applied for.
City employee terminated for unauthorized leave, where she failed to submit doctor notes necessary to reauthorize her FMLA leave. Hearing Examiner found she was terminated for just cause, and Personnel Board affirmed that decision 3-1. She appealed the due process hearing to District Court as part of a claim for breach of contract, and violation of the FMLA, and all claims were dismissed. She then filed a single appeal to the Court of a Appeals. The Court of appeals concluded the due process administrative appeal was not timely filed by writ of certiori; it further agreed with the District Court that the breach of contract claim was barred by res judicata, and the FMLA claim was barred by collateral estoppel.
If you have any labor or employment matters that you would like to resolve privately through a knowledgeable and experienced arbitrator or mediator, please feel free to contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
