Deadline Imposed for Compelling Arbitration
Do you have arbitration agreements with your employees? If so, you should be aware that New Mexico enacted a new rule specifying the time by which a party must move to compel arbitration after a legal complaint has been filed. Pursuant to Rule 1-007.2, which took effect on December 31, 2016, "a party seeking to compel arbitration of one or more claims shall file and serve on the other parties a motion to compel arbitration no later than ten (10) days after service of the answer or service of the last pleading directed to such claims." This means that if an employee files a legal complaint against his employer andthe employer has an arbitration agreement with the employee, the employer will need to move quickly to compel arbitration. Previously, there was no firm deadline for the employer to move to compel arbitration; courts considered a variety of factors when deciding whether the motion to compel was timely including whether there was prejudice to the employee by the status of activity in the underlying lawsuit.
New Mexico Legislation to Watch
During this legislative session, there are many proposed bills that could affect New Mexico employers. In particular, employers should pay close attention to the following:
Increasing the Minimum Wage: There are currently four bills targeted at increasing the minimum wage. HB 27 seeks to increase the current state-wide minimum wage of $7.50 per hour to $15.00 per hour. HB 134 seeks to increase the minimum wage for various school employees to $15.00 per hour. SB 36 proposes increasing the state-wide minimum wage to $8.45 per hour for employers with more than 10 employees. And, HB 67 proposes to increase the minimum wage from $7.50 to $10.10 over three calendar years, starting on January 1, 2018.
Pregnant Worker Accommodation Act, HB 179: If enacted, this bill would make it a illegal for employers with four or more employees to discriminate against pregnant employees. Discrimination includes, for example, refusing to make a reasonable accommodation, refusing to hire, discharging, or demoting the pregnant individual. Currently, employers with more than 15 employees are prohibited against discrimination under the federal Pregnancy Discrimination Act. The proposed bill would directly affect small New Mexico businesses which are currently outside the scope of the federal legislation.
Private Employer Conviction Inquiries, SB 78: This bill proposes to prohibit private employers from inquiring about an applicant's prior convictions on the initial employment application. This type of legislation is often called, "Ban the Box" and similar legislation currently applies to state employers in New Mexico. If enacted, the bill would prevent private employers from inquiring about prior criminal history until after the employer has reviewed the application and discussed employment with the applicant.
A New Year's Resolution for 2017: Update Your Job Descriptions: When a disabled employee is demoted, transferred or terminated because the employee cannot perform the essential functions of his job (even with reasonable accommodations), one factor the courts look at to determine whether something truly is an essential function of the job is whether it is included in the employee's written job description. On January 17, 2017, the Tenth Circuit upheld summary judgment in favor of an employer on a disability discrimination claim and reaffirmed that factors considered in determining whether something is an essential function of an employee's job include (1) the employer's judgment as to which functions are essential, (2) the written job description, (3) the consequences of not requiring the employee to perform the essential function, and (4) the current work experience of employees in similar jobs. See Wickware Jr. v. Johns Manville, 2017 U.S. App. LEXIS 801 (Unpub. January 17, 2017). If you have not reviewed your company's job descriptions recently, it is worthwhile to spend some quality time with them to make sure they adequately set forth the essential functions of each job.