John Block

In January, state Reps. Angelica Rubio (D-Doña Ana), G. Andrés Romero (D-Bernalillo), Patricia Roybal Caballero (D-Bernalillo), and Linda Serrato (D-Santa Fe) filed H.B. 37, which is an extreme bill pertaining to “paid sick leave,” which has the potential of killing countless small businesses in New Mexico, as reported on earlier.

The bill would force every single employer in the state (160,000 out of 340,000 being small businesses) to provide up to fifty-six hours of paid sick leave to employees, regardless of how many hours the employee works per week or if they are an independent contractor. “Employees shall accrue a minimum of one hour of paid sick leave for every thirty hours worked,” says the bill. The Department of Workforce Solutions (DWS) notes that “Employers could not avoid liability for sick leave by misclassifying the employee as an independent contractor.”

Putting employers on the hook for thousands in paid sick leave, as well as all the administrative costs involved in tracking and reporting compliance to DWS, would put many small “mom and pop” shops out of business, with few protections for the employer if an employee were to complain and take the business to court. 

Not only are the employers forced to delve out thousands of dollars in paid sick leave, but the leave can be used for an array of different things, including the following: 

1) An employee’s mental or physical illness, injury or health condition; medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; or preventive medical care; 

(2) an employee to care for a family member with a mental or physical illness, injury or health condition; to care for a family member who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; or to care for a family member who needs preventive medical care; or 

(3) an absence necessary due to domestic abuse, sexual assault or stalking suffered by the employee or employee’s family member; provided that the leave is for the employee to obtain medical or psychological treatment or other counseling, relocate, prepare for or participate in legal proceedings or obtain services or to assist the employee’s family member with any of those activities.

The bill also forces the employer to be on the hook for up to 80 hours of “supplemental leave” during a pandemic, which the employee could use not only to take care of their children (as state employees are currently allowed to do) but any “family member when that family member’s care provider is unavailable due to the public health emergency.”

When using the paid sick leave, the employee must make a “good faith” effort to alert the employer ahead of time, while not being required to “find a replacement worker as a condition of using paid sick leave.” If the employee claims they must use paid sick leave for “an emergency, unexpected illness, domestic abuse, sexual assault or stalking,” then no notice to the employer is required.

According to DWS, “Employees alleging employers violating the act but also advocacy groups lacking usual standing in court could seek relief.” That means social justice groups could swoop in and allege a complaint, opening an expensive inquiry into the employer. The bill would force an investigation by DWS within 30-days, which the department notes “is inconsistent with other investigations that the Labor Relations Division (LRD) is tasked with.” 

“HB37 imposes new notice and recordkeeping obligations on employers and subjects them to monetary penalties for violating the proposed law, allowing courts to impose liquidated damages ranging from $500 to $1,000 per violation plus actual damages, back pay and benefits, reinstatement, rescission of disciplinary action, litigation costs and attorney fees,” writes DWS.

The Department of Workforce Solutions, headed by Gov. Michelle Lujan Grisham-appointed Secretary Bill McCamley, gave a startling rebuke of the legislation, writing that the bill is the most aggressive and “punitive” to employers in the entire nation.

“A cursory review of similar PSL legislation across the United States reveals that no single state law has as aggressive an array of requirements and employer penalties as HB37… Fourteen states and the District of Columbia have PSL statutes, none of which are as comprehensive and punitive as HB37,” wrote the Department. 

DWS also notes that the claims required by the bill would force the Department to “establish an entire new class of cases” that it must investigate and litigate, requiring “considerable additional funding in order to support the personnel and structural enhancements required to execute these mandates,” despite no appropriation being tied to the bill.

The Department has problems already with juggling unemployment claims during the COVID-19 pandemic due to Gov. Lujan Grisham’s harsh lockdowns. And while New Mexicans are still waiting in line for their unemployment checks, 24,872 citizens are on the hook to pay back DWS’s “overpayments,” which haunts the department.

H.B. 37 is related to two other paid sick leave bills, H.B. 20 and H.B. 38, which outline longer-term medical and family benefits. However, this bill is by far the most aggressive, and as DWS notes, the most “punitive” to businesses, although it takes issue with portions of the other bills. 

The bill has been referred to the House Labor, Veterans’ and Military Affairs Committee (HLVMC) for initial consideration. Members of the Committee can be reached here.