HOUSE BILL 216
51st legislature - STATE OF NEW MEXICO - first session, 2013
INTRODUCED BY
Brian F. Egolf
AN ACT
RELATING TO EMPLOYMENT; ENACTING THE FAIR PAY FOR WOMEN ACT; PROHIBITING WAGE DISCRIMINATION BASED ON AN EMPLOYEE'S SEX; PROHIBITING RETALIATION FOR ASSERTING A CLAIM PURSUANT TO THE FAIR PAY FOR WOMEN ACT; PROVIDING PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 9 of this act may be cited as the "Fair Pay For Women Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Fair Pay for Women Act:
A. "commission" means the human rights commission;
B. "director" means the chief of the human rights bureau of the labor relations division of the workforce solutions department;
C. "employ" means suffer or permit to work;
D. "employee" means any individual employed by an employer;
E. "employer" means an individual, partnership, association, corporation, business trust, legal representative or any organized group of persons employing fifteen or more employees who work more than thirty hours per week and act directly or indirectly in the interest of an employer in relation to an employee;
F. "unpaid wage" means the difference between the wages paid to the employee and the wages that would have been paid to the employee had the discrimination not occurred; and
G. "wage" means compensation for performance of services by an employee for an employer whether paid by the employer or another person, including cash value of all compensation paid in any medium other than cash.
SECTION 3. [NEW MATERIAL] PROHIBITION ON PAYING EMPLOYEES LESS FOR SAME WORK.--
A. No employer shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in the establishment at a rate less than the rate that the employer pays wages to employees of the opposite sex in the establishment for equal work on jobs the performance of which requires equal skill, effort and responsibility and that are performed under similar working conditions, except where the payment is made pursuant to a:
(1) seniority system;
(2) merit system;
(3) system that measures earnings by quantity or quality of production; or
(4) differential based on any other factor other than sex.
B. An employer shall not reduce the wage of an employee to comply with this section.
SECTION 4. [NEW MATERIAL] GRIEVANCE PROCEDURE.--
A. A person claiming to be aggrieved by an unlawful discriminatory practice in violation of the provisions of the Fair Pay for Women Act may file with the human rights bureau of the labor relations division of the workforce solutions department a written complaint that shall state the name and address of the employer alleged to have engaged in the discriminatory practice, all information relating to the discriminatory practice and any other information that may be required by the commission. All complaints shall be filed with the bureau within one year from the date of discovery of the alleged violation.
B. The director shall advise the employer that a complaint has been filed against the employer and shall furnish the employer with a copy of the complaint. The director shall promptly investigate the alleged act. If the director determines that the complaint lacks probable cause, the director shall dismiss the complaint and notify the employee and employer of the dismissal. The complaint shall be dismissed subject to appeal as in the case of other orders of the commission.
C. If the director determines that probable cause exists for the complaint, the director shall attempt to achieve a satisfactory adjustment of the complaint through persuasion and conciliation. The director and staff shall neither disclose what has transpired during the attempted conciliation nor divulge information obtained during any hearing before the commission or a commissioner prior to final action relating to the complaint. An officer or employee of the workforce solutions department who makes public in any manner information in violation of this subsection is guilty of a misdemeanor and upon conviction shall be fined not more than one thousand dollars ($1,000) or imprisoned not more than one year.
D. An employee who has filed a complaint with the human rights bureau may request and shall receive an order of nondetermination from the director without delay after the bureau's receipt of the complaint and in jointly filed cases, after the federal complaint has been closed. The order of nondetermination may be appealed pursuant to the provisions of Section 7 of the Fair Pay for Women Act.
E. If conciliation fails or if, in the opinion of the director, informal conference cannot result in conciliation and the employee has not requested a waiver of right to hearing pursuant to the provisions of Subsection H of this section, the commission shall issue a written complaint in its own name against the respondent. The complaint shall set forth the alleged discriminatory practice and the relief requested. The complaint shall require the employer to answer the allegations of the complaint at a hearing before the commission or hearing officer and shall specify the date, time and place of the hearing. The hearing date shall not be more than fifteen or less than ten days after service of the complaint. The complaint shall be served on the employer personally or by registered mail, return receipt requested. The hearing shall be held in the county where the employer is doing business or the alleged discriminatory practice occurred.
F. Within one year of the filing of a complaint by an allegedly aggrieved employee, the commission or its director shall:
(1) dismiss the complaint for lack of probable cause;
(2) achieve satisfactory adjustment of the complaint as evidenced by order of the commission; or
(3) provide the allegedly aggrieved employee a written order and written notice that the employee may initiate an action in the district court of the county where the employer is doing business or where the alleged violation occurred.
G. Upon the filing of the employee's action, the district court of the county where the employer is doing business or where the alleged discriminatory practice occurred may grant injunctive relief pending hearing by the commission or pending judicial review of an order of the commission so as to preserve the status quo or to ensure that the commission's order as issued will be effective. The employee shall not be required to post a bond.
H. The employee may seek a trial de novo in the district court in lieu of a hearing before the commission, provided the employee requests from the director, in writing, a waiver of the employee's right to hearing within sixty days of service of written notice of a probable cause determination by the director. The director shall approve the waiver request and shall serve notice of the waiver upon the employee and employer. The employee may request a trial de novo pursuant to Section 7 of the Fair Pay for Women Act within ninety days from the date of service of the waiver. Issuance of the notice shall be deemed a final order of the commission for the purpose of appeal pursuant to that section.
SECTION 5. [NEW MATERIAL] HEARING PROCEDURES.--
A. The respondent to a complaint made pursuant to Section 4 of the Fair Pay for Women Act may file a written answer to the complaint, appear at the hearing, give testimony and be represented by counsel and may obtain from the commission subpoenas for any person or for the production of any evidence pertinent to the proceeding. The complainant shall be present at the hearing and may be represented by counsel. Each party shall have the right to amend the party's complaint or answer.
B. A panel of three members of the commission designated by the chair shall sit, and a decision agreed upon by two members of the panel shall be the decision of the commission. Hearings also may be conducted by a hearing officer employed by the human rights bureau of the labor relations division of the workforce solutions department or, if the hearing officer is unavailable, one member of the commission may be designated by the chair to act as a hearing officer. A hearing officer shall have the same powers and duties as a commissioner as set forth in Paragraph (2) of Subsection A of Section 28-1-4 NMSA 1978.
C. The complainant or the complainant's representative shall present to the commission or the hearing officer the case supporting the complaint. No evidence concerning prior attempts at conciliation shall be received. The director shall not participate in the hearing, except as a witness.
D. The commission and the hearing officer shall not be bound by the formal rules of evidence governing courts of law or equity but shall permit reasonable direct examination and cross-examination and the submission of briefs. Testimony at the hearing shall be taken under oath and recorded by tape or otherwise. Upon the request of any party, testimony shall be transcribed, provided that all costs of transcribing shall be paid by the party so requesting. Each commissioner and hearing officer may administer oaths.
E. Upon the conclusion of a hearing conducted by a hearing officer, the hearing officer shall prepare a written report setting forth proposed findings of fact and conclusions of law and recommending the action to be taken by the commission. The hearing officer shall submit the report to a review panel consisting of no more than three members of the commission designated by the chair. A decision by a majority of the members of the review panel shall be the decision of the commission. If the commission finds from the evidence presented at any hearing held pursuant to this section that the employer has engaged in a discriminatory practice, it shall make written findings of fact, conclusions of law and its decision based upon the findings of fact and conclusions of law. The commission may adopt, modify or reject the proposed findings of fact and conclusions of law and the action recommended by the hearing officer. Within five days after any order is rendered by the commission following a hearing, the commission shall serve upon each party of record and the party's attorney, if any, a written copy of the order by certified mail to the party's address of record. All parties shall be deemed to have been served on the tenth day following the mailing. As part of its order, the commission may require the employer to pay actual damages to the complainant and to pay reasonable attorney fees, if the employee was represented by private counsel, and to take such affirmative action as the commission considers necessary, including a requirement for reports of the manner of compliance.
F. If the commission finds from the evidence that the employer has not engaged in a discriminatory practice, it shall make written findings of fact and serve the employee and employer with a copy of the findings of fact and with an order dismissing the complaint.
SECTION 6. [NEW MATERIAL] ENFORCEMENT--PENALTIES--REMEDIES.--
A. An employer who violates a provision of the Fair Pay for Women Act shall be liable to the employee affected in an amount not to exceed:
(1) the affected employee's unpaid wages from the date of the violation to the date of the filing of the claim;
(2) actual damages; and
(3) punitive damages.
B. An action to establish liability and recover damages may be maintained in any court of competent jurisdiction by any one or more employees for and on behalf of the employee or employees and for other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action on behalf of all employees similarly situated.
C. The court in any action brought under this section shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow costs of the action and reasonable attorney fees to be paid by the defendant. In any proceedings brought pursuant to the provisions of this section, the employee shall not be required to pay any filing fee or other court costs necessarily incurred in such proceedings.
D. The court in any action brought under this section may order appropriate injunctive relief, including requiring an employer to post in the place of business a notice describing violations by the employer as found by the court or a copy of a cease and desist order applicable to the employer.
E. An action arising under the Fair Pay for Women Act shall be initiated within one year from the date of the discovery of the violation.
SECTION 7. [NEW MATERIAL] APPEAL.--
A. A person aggrieved by an order of the commission may obtain a trial de novo by filing a notice of appeal in the district court of the county where the alleged discriminatory practice occurred or where the employer does business. The notice of appeal must be filed within ninety days from the date of service of the commission's order. A copy of the notice of appeal shall be served personally or by certified mail, return receipt requested, on all parties who appeared before the commission at their last known addresses. A copy of the notice of appeal shall also be served at the human rights bureau of the labor relations division of the workforce solutions department in Santa Fe. An order of the commission shall not be superseded or stayed during the appeal unless the district court so directs after notice to the commission and a hearing.
B. If testimony at the hearing was transcribed, the bureau shall, upon receipt of the notice of appeal, file so much of the transcript of the record as the parties requesting the transcript designate as necessary for the appeal with the district court.
C. Upon appeal, either party may request a jury. The jurisdiction of the district court is exclusive and its judgment is final, subject to further appeal to the court of appeals.
D. If the employee prevails in an action or proceeding under this section, the court in its discretion may allow reasonable attorney fees, and the state shall be liable the same as a private person.
SECTION 8. [NEW MATERIAL] RETALIATION PROHIBITED.--It is a violation of the Fair Pay for Women Act for an employer or any other person to discharge, demote, deny promotion to or in any other way discriminate against a person in the terms or conditions of employment in retaliation for the person asserting a claim or right pursuant to the Fair Pay for Women Act or assisting another person to do so, or for informing another person about employment rights or other rights provided by law.
SECTION 9. [NEW MATERIAL] PENALTY FOR RETALIATION.--An employer who willfully violates a provision of Section 8 of the Fair Pay for Women Act shall be liable to the person affected in the amount of up to fifty thousand dollars ($50,000).
SECTION 10. Section 28-1-7 NMSA 1978 (being Laws 1969, Chapter 196, Section 7, as amended) is amended to read:
"28-1-7. UNLAWFUL DISCRIMINATORY PRACTICE.--It is an unlawful discriminatory practice for:
A. an employer, unless based on a bona fide occupational qualification or other statutory prohibition, to refuse to hire, to discharge, to promote or demote or to discriminate in matters of compensation, terms, conditions or privileges of employment against any person otherwise qualified because of race; age; religion; color; national origin; ancestry; sex, other than as provided in the Fair Pay for Women Act; physical or mental handicap or serious medical condition; or, if the employer has fifty or more employees, spousal affiliation; provided, however, that 29 U.S.C. Section 631(c)(1) and (2) shall apply to discrimination based on age; or, if the employer has fifteen or more employees, to discriminate against an employee based upon the employee's sexual orientation or gender identity;
B. a labor organization to exclude a person or to expel or otherwise discriminate against any of its members or against any employer or employee because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation, physical or mental handicap or serious medical condition;
C. any employer, labor organization or joint apprenticeship committee to refuse to admit or employ any person in any program established to provide an apprenticeship or other training or retraining because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, physical or mental handicap or serious medical condition, or, if the employer has fifty or more employees, spousal affiliation;
D. any person, employer, employment agency or labor organization to print or circulate or cause to be printed or circulated any statement, advertisement or publication, to use any form of application for employment or membership or to make any inquiry regarding prospective membership or employment that expresses, directly or indirectly, any limitation, specification or discrimination as to race, color, religion, national origin, ancestry, sex, sexual orientation, gender identity, physical or mental handicap or serious medical condition, or, if the employer has fifty or more employees, spousal affiliation, unless based on a bona fide occupational qualification;
E. an employment agency to refuse to list and properly classify for employment or refer a person for employment in a known available job, for which the person is otherwise qualified, because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation, physical or mental handicap or serious medical condition, unless based on a bona fide occupational qualification, or to comply with a request from an employer for referral of applicants for employment if the request indicates either directly or indirectly that the employer discriminates in employment on the basis of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation, physical or mental handicap or serious medical condition, unless based on a bona fide occupational qualification;
F. any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation;
G. any person to:
(1) refuse to sell, rent, assign, lease or sublease or offer for sale, rental, lease, assignment or sublease any housing accommodation or real property to any person or to refuse to negotiate for the sale, rental, lease, assignment or sublease of any housing accommodation or real property to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation;
(2) discriminate against any person in the terms, conditions or privileges of the sale, rental, assignment, lease or sublease of any housing accommodation or real property or in the provision of facilities or services in connection therewith because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation; or
(3) print, circulate, display or mail or cause to be printed, circulated, displayed or mailed any statement, advertisement, publication or sign or use any form of application for the purchase, rental, lease, assignment or sublease of any housing accommodation or real property or to make any record or inquiry regarding the prospective purchase, rental, lease, assignment or sublease of any housing accommodation or real property that expresses any preference, limitation or discrimination as to race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation;
H. any person to whom application is made either for financial assistance for the acquisition, construction, rehabilitation, repair or maintenance of any housing accommodation or real property or for any type of consumer credit, including financial assistance for the acquisition of any consumer good as defined by Section 55-9-102 NMSA 1978, to:
(1) consider the race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap of any individual in the granting, withholding, extending, modifying or renewing or in the fixing of the rates, terms, conditions or provisions of any financial assistance or in the extension of services in connection with the request for financial assistance; or
(2) use any form of application for financial assistance or to make any record or inquiry in connection with applications for financial assistance that expresses, directly or indirectly, any limitation, specification or discrimination as to race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap;
I. any person or employer to:
(1) aid, abet, incite, compel or coerce the doing of any unlawful discriminatory practice or to attempt to do so;
(2) engage in any form of threats, reprisal or discrimination against any person who has opposed any unlawful discriminatory practice or has filed a complaint, testified or participated in any proceeding under the Human Rights Act; or
(3) willfully obstruct or prevent any person from complying with the provisions of the Human Rights Act or to resist, prevent, impede or interfere with the commission or any of its members, staff or representatives in the performance of their duties under the Human Rights Act; or
J. any employer to refuse or fail to accommodate a person's physical or mental handicap or serious medical condition, unless such accommodation is unreasonable or an undue hardship."
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