As a labor and employment arbitrator and mediator, I regularly receive calls from folks desiring general legal
information regarding labor and employment law.
Frequently the callers believe they (or their members, if a union) have faced some sort of adverse employment action, or they would like to take some kind of action against an employee, and wonder if such action has or could give rise to a legal claim. I let them know that, as an arbitrator and mediator, I cannot represent employers, employees or unions as an advocate, due to conflicts. However, I often explain some general legal principles and refer them on to another attorney for legal advice.
Based on my past experience as PELRB Deputy Director and hearing examiner, I also have frequent occasion to field questions concerning New Mexico’s regulatory structure for collective bargaining. After many such conversations I have realized that posting this general legal information could be helpful to many employers, union advocates, and employees.
TABLE OF CONTENTS
|II.||Standards and agencies for various regulatory issues|
|1.||Union-related matters generally|
|3.||Child labor standards|
|5.||Family Medical Leave Act (FMLA)|
|8.||Wage and hour issues, generally|
|11.||Other Wrongful Employment Action—Private Sector|
|III.||Public Employee Bargaining Act and Related Local Labor Ordinances|
|2.||Overview of basic rights|
|6.||Sources of law and decision summaries|
|7.||Resources and Links|
|IV.||Discipline in public sector employment|
|V.||Special issues in public safety employment|
|VI.||Special issues related to severance of New Mexico public school employment|
* * * * * * * * *
The first thing to keep in mind is that labor and employment law themselves are very distinct from each other, involving completely different issues and legal standards.
“Labor law” refers to the state and federal laws and regulations governing collective bargaining, or union-related activities. The National Labor Relations Act (NLRA), 29 USC 151 et seq., governs the collective bargaining relationships in most private sector industries, and there are several other federal statutes that govern labor relations in specific industries or sectors of the economy. Many states—such as New Mexico—have also enacted collective bargaining statutes modeled on the NLRA, to cover those some or all sectors of the economy not covered by federal law.
“Employment law,” in contrast, is the general catch-all phrase that covers all other areas of the law related to the various phases, conditions and circumstances of the employment relationship. Disputes arising in this area of the law often fall into one of the following categories:
(a) Introduction and Overview.
Labor law governs discrimination, harassment and/or retaliation based on union related activities. Employment law governs other types of illegal discrimination.
I stress “illegal,” because it is not enough that an employer treats one employee badly or different from other employees. Rather the alleged discrimination must be
based on one or more of a number of factors that violate federal and/or state law.
Illegal employment discrimination generally includes that based on race; age; religion; color; national origin; ancestry; sex/gender; physical or mental handicap or serious medical condition. Additionally, in New Mexico, it also includes sexual orientation or gender identity, if the employer has 15 or more employees; and spousal affiliation if the employer has fifty or more employees.
Under anti-discrimination law, an employer may not discriminate in the hiring, promotion, job assignment and/or wages, based on illegal criteria. Nor may an employer terminate or otherwise retaliate against an employee for filing a claim based on discrimination. However, the availability of protection against illegal discrimination varies widely from statute to statute depending on the number of employees. For relevant statutory language, see the following acts:
(b) Intentional discrimination or “disparate treatment”.
Under this type of claim, a plaintiff alleges he or she was treated differently from other employment applicants or employees because of his or her race, age,
religion, color, national origin, ancestry, sex/gender, physical or mental handicap or serious medical condition, sexual orientation or gender identity, or spousal
In these kinds of cases, the two main proof issues are animus, or that the discrimination was intentional, and causation between the discrimination and any adverse employment action. Employer liability for the conduct of its agent may also be an issue.
Causation may be proved by “temporal proximity” between acts evidencing discrimination and the adverse employment action, or other circumstantial evidence. Intent may be proven directly or through circumstantial evidence.
(c) Hostile workplace claims.
Because overt declarations of discriminatory intent are rare, the most common type of direct evidence is a pattern of remarks or conduct establishing a general
prejudice towards the plaintiff or his or her protected class, and which arises to the level of a “hostile workplace.”
In this type of case, ambiguous statements, stray remarks and isolated conduct are insufficient. Instead, analysis usually turns on the frequency and duration of the conduct, and whether the conduct would be objectively offensive to a reasonable person.
In these types of cases, the employer can raise an affirmative defense that it exercised reasonable care to prevent and correct harassment, and the employee failed notify the employer of the misconduct, or to use the employer’s remedial procedures. The employer may also present evidence that the conduct would not have been “objectively offensive” in the particular work environment, or to the particular employee who was accustomed to and/or personally engaged in crude behavior, but at least one federal circuit court has held that a plaintiff need not be a “saint” to recover under an employment discrimination claim.
(d) Quid pro quo harassment or “tangible employment action” claims.
The “quid pro quo” claim is a type of direct evidence, intentional discrimination case that is unique to sexual harassment. As the name suggests, this occurs
when an employer conditions some employment action, benefit or condition upon the receipt of sexual favors.
In this type of claim, the plaintiff must show “tangible employment action.” Therefore, conditions or circumstances such as the following will not be enough, standing alone, although they may help establish a claim for hostile workplace: “bruised egos;” transfers without loss or change in pay, duties, prestige or benefits transfer to a more inconvenient job; or prank phone calls.
Employers are strictly liable for the actions of supervisors in these types of cases.
(e) “Prima facie” or circumstantial cases.
Where there is no direct evidence of intentional discrimination, a plaintiff may present a prima facie case from which discrimination can be inferred.
The elements for a prima facie discrimination case are that the claimant:
(f) Disparate Impact.
Disparate impact claims, unlike disparate treatment claims, are not premised on motive.
Instead, motive is irrelevant and the focus of inquiry is on some facially neutral hiring device
or employment practice that has a disproportionate impact on a group defined by race, color,
religion, sex, national origin age and disability (although the latter two categories have different
This is a rather controversial theory, and has several special difficulties. First, it applies only to statutory claims, not constitutional or §1981 claims. Second, it is difficult to establish since statistics alone have been held to be insufficient.
Methods for proving a disparate impact include the following:
(g) Relevant agencies.
Questions or complaints concerning illegal employment discrimination should be directed to one
of the following agencies:
|(a)||for covered public employees to freely form, join or assist a union, without coercion, threat or reprisal;|
|(b)||for these employees to freely refrain from doing the same;|
|(c)||for employers and unions to bargain in good faith with the exclusive representative;|
|(d)||for employers and unions to exchange the information necessary to bargain in good faith, and necessary to adequately represent the employees; and|
|(e)||for exclusive representatives to equally and adequately represent all members of a bargaining unit regardless of union membership, race, color, religion, creed, age, sex or national origin.|
|Pilar Vaile Lic. NM, CA||Phone: (505) 247-0802|
|215 Central Ave N.W., Ste. 3C||Fax: (505) 247-2775|
|Albuquerque, New Mexico 87102|