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Wrangling over paid sick leave in Albuquerque

The following newspaper report that appeared in the Sunday Albuquerque Journal clearly indicates that the recent City Council initiated resolution that changed the INITIATIVE PROCESS in Albuquerque is probably illegal.

This is an extremely important development regarding the Initiative Petition filed on June 28, 2016, to make Route 66 an historically protected right-of-way in Albuquerque.

Important updates to this developing news story will follow.

Sunday July 10, 2016 – Albuquerque Journal – Dan McKay

It’s a debate that’s rattled Colorado, New Jersey and Washington.

Now it’s Albuquerque’s turn.

Supporters of a proposal called the “Healthy Workforce Ordinance” say they hope this fall to make Albuquerque the first city in the state to require that employers offer paid sick leave to their workers.

They plan Monday to turn in the last batch of petition signatures needed to get the proposal before voters, though it isn’t clear yet whether the measure actually will end up on the Nov. 8 ballot or will have to wait until the next city election in October 2017.

A coalition of more than a dozen business groups – including NAIOP, the commercial real estate development association; the Greater Albuquerque Chamber of Commerce; the New Mexico Restaurant Association; and Associated Builders and Contractors – has come together to oppose the ordinance.

The business groups say that offering paid sick leave to every worker is a worthwhile goal, but the proposed ballot measure is far too burdensome.

It could force some businesses to leave the city, opponents contend, because of the paperwork it would require and the potential for litigation from workers who use the ordinance to sue their employers. They say the proposed ordinance’s description on the petition fails to point out many changes that would be required of employers.

“The four mom-and-pop questions on this petition are not what this ordinance is about,” said Lynne Andersen of NAIOP. “It will basically change the way almost every business pays their employees.”

Supporters say the proposal is a common-sense way to ensure that workers don’t have to choose between their paycheck and the health of a family member. Workers could use the sick leave for themselves or to care for a relative, or for absences related to domestic violence, rape or stalking.

They announced their campaign on Mother’s Day to highlight the potential benefit to working moms. But they say it also helps the community as a whole if a cook or child-care worker can stay home rather than spread their illness at work.

“Sometimes the debate is framed as, ‘This is just something we’re giving to workers,’” said Elizabeth Wagoner, an attorney at the New Mexico Center on Law and Poverty. “I think it’s important for people to remember that it impacts all of us when a worker has to go to work sick.”

Supporters say the need is especially critical in New Mexico, which has a higher share of private-sector workers without paid sick leave than any other state, according to data compiled by the Institute for Women’s Policy Research, based in Washington, D.C.

A recent New Mexico Voices for Children study said it would cost private-sector employers statewide $239 million a year to offer paid sick leave to those who don’t have it, or 0.35 percent of the private sector’s gross domestic product in New Mexico.

County has questions

The debate focuses on a seven-page ordinance crafted by supporters. They are attempting to get it before voters using the petition initiative process outlined in the Albuquerque City Charter.

It’s the same method that has been used to propose abortion restrictions, a tax for the BioPark and increases in the minimum wage. Voters approved the tax and minimum wage proposals.

The “Healthy Workforce ABQ” campaign has had 60 days to gather 14,218 signatures from people registered to vote in Albuquerque. Its deadline is Monday.

A variety of left-leaning groups is backing the campaign, including Organizers in the Land of Enchantment, or OLÉ; the SouthWest Organizing Project; El Centro de Igualdad y Derechos, an immigrant rights group; Strong Families New Mexico; and Early Educators United.

Supporters and opponents alike expect the proposal to reach the required signature threshold, though the city clerk, of course, is still verifying the petitions signed by voters.

After that, the proposed sick leave ordinance would go to the City Council, which can either approve the measure outright or send it to voters in the next general or municipal election. The council cannot amend it unless both the original and amended versions are put to voters.

Supporters hope the council will agree to put the proposal on the Nov. 8 ballot this year rather than wait for the 2017 city election.

Getting it on this year’s ballot would also require Bernalillo County’s approval.

County Commission Chairman Art De La Cruz said he’s usually open to adding any question suggested by the city if there’s room on the ballot. County Clerk Maggie Toulouse Oliver said it’s too early to say whether there will be room, in part, because the county is still formulating its own questions.

Employees can sue

As business leaders prepare to fight the ordinance, they’re focusing on the details of the proposal, not necessarily the concept of paid sick leave.

One concern is record-keeping. The ordinance requires employers to maintain payroll records for every employee, including the amount of sick time accrued and used, and to keep the records for four years.

That’s because city attorneys would have a right to inspect the records. Also, an employee who leaves and returns to an employer within a year is entitled to sick leave acquired during the person’s first stint.

Opponents say many small companies won’t be able to meet such requirements, especially in industries like construction that have a transient workforce where people come and go depending on the project.

Critics also fear that the ordinance will interfere with the practice of offering “paid time off,” or leave that doesn’t distinguish between whether a person is sick or taking vacation. They say that is a growing trend that many employees prefer.

“It just creates a rigid work environment,” Jason Espinoza of the New Mexico Association of Commerce and Industry told the Journal . “Each employer and employee relationship is unique.”

Wagoner said supporters intend for the ordinance to allow PTO and count it toward the sick time requirement. She cites a provision that says employers don’t have to provide additional sick leave if they already have a “paid leave policy that meets or exceeds the requirements of this ordinance.”

Opponents also say the ordinance makes employers vulnerable to litigation if they fire or demote an employee who – by coincidence – has called in sick within the past three months.

That’s because the bill would establish a “rebuttable presumption of a violation” if the employer takes action against someone who has exercised their rights under the ordinance or alleged a violation of their rights within the past 90 days.

“That’s dangerous,” said Carol Wight of the New Mexico Restaurant Association. “It’s one-sided the way it’s written.”

The goal, Wagoner said, is simply to prohibit retaliation against workers. The employer would just explain to the court why the action was taken.

If the explanation makes sense “and it really wasn’t retaliation, there shouldn’t be a problem,” she said.

Employers who violate the law would face financial penalties. Workers could win damages of three times the value of any unpaid sick time they’ve accrued.

Employers who break the law could also face civil fines based on how many employees were affected.

The city attorney’s office would be charged with enforcing the ordinance, and employees could also file their own lawsuits, including class actions.

Ordinance is ‘flawed’

About two dozen cities and five states require employers to provide paid sick time to their employees or have passed laws to do so. The states include California and Connecticut. The cities include Chicago; Jersey City, N.J.; Pittsburgh; and Tacoma, Wash. Voters in Denver rejected a sick leave bill in 2011.

In a policy paper issued in February, New Mexico Voices for Children, an advocacy group, estimated that it would cost about $239 million in New Mexico to provide one week of paid sick leave to people who don’t have it already. That’s a cost employers should be able to handle, New Mexico Voices for Children contends.

Mike Puelle, CEO of Associated General Contractors of New Mexico, disputes that businesses can afford the cost. In construction, for example, the margins are “razor thin,” he said.

Ken Carson Jr., owner of Nexus Brewery and the Nexus Silver Taproom, said he already offers paid leave that exceeds what’s proposed in the ordinance and he supports the ballot measure.

“I feel like it’s something that workers in this industry should have,” Carson said. “I come from a banking background and every bank I’ve ever worked at, every organization I’ve worked for, has had paid time off for its workers. … I think we end up reaping what we sow when we don’t take care of our staff.”

The opposing campaign, called the “Coalition for a Healthy Economy,” says the ordinance is simply flawed, no matter how well-intended. It’s an extra burden for businesses as New Mexico struggles to recover from the Great Recession, it said.

The coalition includes the Albuquerque Economic Forum, Apartment Association of New Mexico, Associated Builders and Contractors Inc., Associated General Contractors New Mexico, American Subcontractors Association of New Mexico, Commercial Association of Realtors New Mexico, Greater Albuquerque Association of Realtors, Greater Albuquerque Chamber of Commerce, Home Builders of Central New Mexico, NAIOP, New Mexico Association of Commerce and Industry, New Mexico Restaurant Association and New Mexico Utility Contractors Association.

If the debate over sick leave must happen, it should be at the state level to avoid a patchwork of rules, they said.

The proposal “is very scary, especially for small businesses,” Andersen, the NAOIP president, said.

How it would work
• All employers in Albuquerque would have to comply, no matter their size, if they have “physical premises” within the city. State government would be exempt.
• Any employee who works seven days or more in one year would be entitled to earn sick leave. That includes part-time, seasonal and temporary workers.
• An employee would earn at least one hour of sick leave for every 30 hours worked.
• Employees at large businesses – 40 or more workers – could use up to seven sick days a year, if they’ve earned that much. At smaller employers, they could get five days.
• The paid sick leave could be used by the employees to care for themselves or a sick family member, or for absences related to domestic violence, sexual assault or stalking.
• The employer could require the employee to provide documentation if the person uses three or more sick days in a row. The employer, however, would have to pay the worker’s out-of-pocket expenses if obtaining the documentation costs money. The employer would have to keep the documentation confidential.
• Employers could offer more generous benefits than those required.
• The ordinance would establish a “rebuttable presumption of a violation” if the employer takes action against someone who has exercised their rights under the ordinance or alleged a violation of their rights within the last 90 days.
• There is a debate over whether the ordinance would eliminate “paid time off” plans and require separate sick-leave accounting.
• The city attorney’s office would be charged with enforcing the law and employees could file their own lawsuits.
• Employers would need to keep track of earned sick time for every employee and keep the records for four years.






May a municipality propose a question on the statewide general election ballot?


No, Questions on a general election ballot are limited to those the law authorizes for submission to voters in a general election under the New Mexico Election Code. A municipality has no legal authority to submit questions to voters of the municipality on a general election ballot. Nevertheless, a municipality may submit a question to voters of the municipality on a municipal election ballot in a municipal election held on the same day as a general election.

(See: Official NM Attorney General IMAGE COPY HERE.)

In 2004 the City of Albuquerque spent $596,000 to put three (3) election items on the Bernallillo County general election ballot for the November 2, 2004, general election.
(See: Verified Petition for Declaratory Relief  Second Judicial District Court – State of New Mexico – County of Bernalillo, filed October 4, 2004.)
(Also See: Memorandum of Understanding (Exhibit A) (3 pages) signed and dated August 31, 2004.)
(Also See: City of Albuquerque Check dated 09/08/2004, for the amount of $300,000; and City of Albuquerque Check dated 02/14/2006, for the amount of $296,000.)
Note: The Memorandum of Understanding specifically required the second payment to be made, “”within thirty (30) days of the November 2, 2004 election.” Payment was not made until February 14, 2006, one year and 2 ½ months after the due date.

The election procedure was said (in the agreement) to be conducted under § NMSA 3-8-9. A. However, the August 16, 2012, NM Attorney General opinion determined that the procedure used did not comport with the NM statute. The lawful procedure is to hold a municipal special election that is concurrent with the general election. Election law requires that the two ballots, and two procedures, are distinct.


Id. Latin, short for idem and eadem, meaning “the same”.  Denotes the previously cited source. Id. is particularly used in legal citations.

NM 2015 Edition Election Handbook:

NMSA Chapter 3 Article 8 – Municipal Elections:

NM Clerks election document:

Dan McKay articles – Albuquerque Journal:

Dan McKay, a journalist for the Albuquerque Journal newspaper, published at least three newspaper articles that misrepresented the election process.

Dan McKay – July 7, 2016 email:
To: Joey Keefe (jkeefe@bernco.gov) Public Information Officer (PIO) Bernalillo County Clerk

Hi Joey,
Supporters of a proposal to require paid sick leave in Albuquerque are nearing their deadline to submit signatures to the city clerk.
If they are successful and collect the required signatures, do you know whether there’s room on the Nov. 8 ballot for the question? Do you know whether the whole ordinance must go on the ballot, or just a summary question?
The supporters want to get it on the ballot this fall, thought it could go instead on the city’s own ballot in 2017.

Wrangling over paid sick leave. Sunday July 10, 2016 (Sunday Journal front page)

Supporters of sick leave initiative claim 24K signatures. Tuesday July 12, 2016 (C1)

July 12, 2016 visit to Albuquerque Publishing Company – 7777 Jefferson Street NE – Albuquerque, NM 87109. 501,944 readers every week. City desk; 505 / 823-3840. Martha Hill mhill@abqpubco.com – Executive Assistant to the Publisher. Sharon Friedes – Director of Advertising sfriedes@abqpubco.

Dan McKay – July 15, 2016 email:

Hi Mr. Clayton,
I’m not sure I understand what the discrepancy is. Perhaps I’m misreading your objection.
In any case, I didn’t rely on anyone else’s legal interpretation, just my own reading of the City Charter and related legislation. I’ve attached the legislation that addresses the timing of an election, though it looks like you may have already read it.
My story says: … the proposed sick leave ordinance would go to the City Council, which can either approve the measure outright or send it to voters in the next general or municipal election.
That was my attempt to summarize the City Charter section that says that if the council doesn’t approve the measure … an election on the issues must be held at the next general election or regular municipal election.
You can also view Article 3, Section 3 of the charter here, before the recent amendment.
I didn’t intend to make any judgment about whether the council gets to pick the election. I was simply trying to reflect what the charter says, which mentions both possibilities.
Does that clear it up, or do you still think I’ve made a mistake?
People on both side of the issue said they liked the story, and neither raised any questions about accuracy.

City Council Resolution – Monday August 1, 2016 – vote.

City asks county to put sick leave question on ballot. Tuesday August 2, 2016 (C2)

Slow growth in ABQ may squeeze City Hall’s budget. Monday August 8, 2016 (C1)

August 9, 2016 – City Council Resolution No. R-16-82  enactment date (DOCUMENT).


Mark Twain