NM Probationary Employees Protected by Human Rights Act

In a case of first impression, the New Mexico Court of Appeals has held that State employees on probationary status may still assert a claim of sex or race discrimination under the New Mexico Human Rights Act (HRA).  See Rodriguez v. NM Workforce Solutions, 2012-NMCA-059.

Exhaustion of Remedies & Employment Handbooks

This summer, in Lucero v. Board of Regents of the Univ. of New Mexico, NMHSC, 2012-NMCA-055 (cert. den.), the Court of Appeals concluded that an employee alleging breach of an employee handbook must exhaust the grievance process outlined in that handbook.

Workplace Concerns Arise Even in Rarified Quarters

In 2009, Model Sara Ziff issued a documentary, Picture Me, which was five years in the making.  In it, Ziff covertly captured the seedy side of the fashion modeling industry, where young girls are often required to work incredibly long hours, denied or mislead about compensation, and are routinely subject to sexual harassment and even assault.  In 2012, Ziff has launched the Model Alliance, in conjunction with the Fordham University’s Fashion Law Institute.  The Alliance is “an advocacy group aimed at improving

Recent Employment Law Decisions--Fees Shifting, Exhaustion and Preclusion

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.

Workers Comp and Tribal Immunity Revisited--What a Tangled Web

As discussed in a previous blog, in 2010, the New Mexico Court of Appeals concluded that the Workers Compensation Administration does not have jurisdiction where a Worker is injured in the course of employment at a business  wholly owned and operated by a federally recognized Indian tribe, if the Tribe has not expressly waived sovereign immunity.  See Antonio v. Inn of the Mountain Gods Resort and Casino, 2010-NMCA-077, cert. den.  

However, recent cases highlight that there can be quite a bit of parsing between tribal business entities, and as to whether which if any have waived tribal immunity

Employee Deemed Constructively Discharged After Successful Mediation

In a recent employment law case, the New Mexico Court of Appeals affirmed a jury verdict awarding an NMSU employee almost $125,000 in damages for retaliation and constructive discharge claims. The decision was largely unremarkable in its analysis and discussion:  that actions occurring before the statute of limitations can be considered under the continuing violation doctrine; and that the sufficiency of evidence is a high standard of review under which the appellate courts will not substitute their judgment for that of the fact-finder.

Far more intriguing to me, however, what was left unsaid in the decision:  how the Court came to conclude that an employee was constructively discharged in spite of obtaining an apparently successful and agreeable settlement through mediation that altered the original, offenses conditions of employment.

Albuquerque Labor Board Unable to Agree on Neutral Appointment

The City of Albuquerque's Labor Management Relations Board--currently comprised of the Labor and Management appointments, Justin Lesky and Barbara Stephenson respectively--met today at 9:00 a.m. at the Mesa Del Sol Building, but were unable to reach a decision on the neutral appointment.  The Labor rep is looking for a candidate with specific labor experience, while the Management rep appears to be looking for a candidate who has a track record representing both sides of the table in either labor or employment matters.

Court Rules No Do-overs Regarding Change of Probationary Status

In a recent case, the New Mexico Court of Appeals upheld administrative hearing examiner and district court conclusions that a change to non-probationary status was effective the date issued, rather than the date purported to be effective.