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.

Retaliation Claims Up and Robust, Discrimination/Harassment Claims Struggling

In the June 2011 issue of the ABA Journal, David L. Huston Jr. observes a trend of the U.S. Supreme Court being more favorably inclined to employment retaliation claims, than underlying discrimination claims.  Of all discrimination-related charges filed in 2010, retaliation charges were up to 36.3 percent, from 27.1 percent in 2000.  Some recent retaliation highlights:

NM Labor Boards - Updates

Some days I feel like--in the words of my youngest son's hero, Buzz Lightyear--"I have landed on a strange planet."  Nowhere is that feeling stronger these days than when considering the current state of the Albuquerque and New Mexico Labor boards, and their various travails.

Bullying Legislation, Revisited.

I have previously written about bullying legislation with considerable suspicion. To summarize, "I'm not a fan." Specifically, I expressed the view that it's impractical, over-burdensome on business, concerns a fuzzy, subjective term that cannot be uniformly applied or understood, and reflects a policy conclusion is not empirically established at all, at this point, e.g., that forceful/aggressive employees are "bad" for business and meeker/milder employees are "good", and that we need to run one group out in favor of another.

Recently, however, I've explored the matter further with colleagues, through a question posed by Marc Brenman on ADR, Conflict Resolution and Mediation Exchange--"Bullying: Amenable to legislated approaches?"  Ultimately, although I appreciate that my view and understanding of workplace "bullying" has been broadened and enhanced considerably, I come to the same conclusion regarding the efficacy and desirability of anti-bullying legislation.

Deja Vu All Over Again: PELRB Appoints Retired ex-Director Juan Montoya as New Director

Today the New Mexico Public Employee Labor Relations Board (PELRB) made the decision, with two in favor and one member abstaining, to appoint ex-Director Juan Montoya as the new Director.

The appointment saga has been going on for some time, as I've written elsewhere, and at this point I imagine any sort of decision is a relief to many. See http://albuquerqueadr2.blogspot.com/2011/02/nm-pelrb-director-terminated.html; http://albuquerqueadr2.blogspot.com/2011/05/recent-nm-labor-goings-on.html; and http://albuquerqueadr2.blogspot.com/2011/05/510-pelrb-meeting-re-new-director.html.   However, there may still be some cause for concern. 

Big News: NLRA Preempts State Law Claims of Termination for Union Activity

In a recent New Mexico case, the Court of Appeals held--not surprisingly to regular labor practitioners--that federal labor law preempts state law claims based on an allegation that a supervisory employee was improperly terminated from employment due to employer's suspicion that the employee was engaged in union-organizing activities. Humphries v. Pay and Save, Inc., 2011-NMCA-035, cert. not applied for.  To the labor practitioner, it is only surprising that the state law claims were pursued at all.

Workers Comp - Claim of Self-Injury Reviewed in Light of Delgado

A critical threshold issue for workers compensation cases can be whether the claim is for an “accidental injury,” as opposed to the result of intentional misconduct.  See NMSA § 52-1-28.  This is significant because where an injury is not accidental, it falls outside of the scope of workers’ compensation law, including its exclusivity provisions.  See  NMSA §§ 52-1-6(E) and 52-1-9.  Depending on who was willful--the employer or employee--it can result in the application of ordinary tort remedies, meaning without capped damages, or a complete bar to any sort of recovery at all.

In a recent case, Pearson v. Johnson Controls, 2011-NMCA-034, cert. den., the New Mexico Court of Appeals has held “that the standard of willfulness required to deny workers’ compensation benefits to an employee for self injury is the same as applied to employers’ misconduct under Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, ¶ 1, 131 NM 272.”  See Pearson at ¶ 1.