Former resident part of Workforce Solutions lawsuit
One of the four plaintiffs is Gallup resident Jose "Pancho" Olivas, who claims that his former employer, Farmington's 505 Burgers and Wings, owes him $15,000 in back wages.
FARMINGTON — Several New Mexico workers and community groups have won a temporary restraining order as part of a lawsuit filed against the New Mexico Department of Workforce Solutions, according to a press release provided by the worker's rights group Somos Un Pueblo Unido, one of the lawsuit's plaintiffs.
The lawsuit, which was filed Jan. 17, challenges a $10,000 cap the department placed on wage theft claims they investigate, and also challenges the department's failure to take action on any wage claims that go back more than one year. The lawsuit claims that these caps are illegal per the state's wage payment laws.
The restraining order, which was issued earlier this month at the First Judicial District Court in Santa Fe, requires the department to immediately accept and file Statements of Wage Claims forms without regard to the amount of the claim or the one-year "lookback" period. The department was also ordered to quit telling workers or applicants that they are ineligible to file claims based on these two policies, to retain all records of claims that were partially investigated under these policies, and to remove the sentence on the Statement of Wage Claim form that says, "This office will not accept Statement of Wage Claims over $10,000."
The temporary restraining order will be in effect until a preliminary injunction hearing set for May 3 takes place.
One of the four individual plaintiffs is Gallup resident Jose "Pancho" Olivas, who claims that a former employer, 505 Burgers and Wings restaurant in Farmington, owes him $15,000 in back wages.
Olivas said he was employed at the restaurant from September 2014 through February 2015, sometimes working between 80 to 120 hours per week. He said that the owner of the restaurant, Morgan Newsom, partially paid him for his labor, continuously promising to catch up and pay him in full, which never happened.
"We were friends and I trusted him," said Olivas. "I moved to Farmington from Gallup just to work for him and I didn't think he would do that to me."
Newson declined to comment on the lawsuit, and attempts to contact the state Department of Workforce Solultions office for comment were unsuccessful.
Olivas claims Newsom has copies of his time cards that would show how many hours he put in during that time frame.
Olivas went to the Department of Workforce Solutions' Farmington office on March 31, 2015, to see what options might be available to obtain back pay.
"They told me to make a claim," he said. "The supervisor helped me fill out the complaint and I sent it in. I then received a letter that said, 'this office will not accept claims over $10,000.' It was ridiculous – how are we supposed to get our money back?"
Emmanuelle Leal Santillan, communications coordinator with Somos Un Pueblo Unido, said his agency joined in order to advocate for the individuals who unsuccessfully sought help from the department.
"It was shocking to hear that (the department) was turning people away unlawfully, just because the employer stole too much money, and this restraining order forces them to accept the wage claims. For the most part, employers pay workers, but it's the bad employers who undercut the ones who follow the law. The court order sends a clear message to workers that they can't let bad employers off the hook."
Olivas said his wife was also employed by the restaurant during the same time, and that the restaurant owes her $25,000 in back wages. He said she hadn't filed a claim with the department because his claim had been denied, but now that progress is being made in the lawsuit, the couple, who has since moved back to Gallup, will look into re-filing with the hope of getting their back wages.
"We don't want anything that's not ours, just what is due to us," he said. "And we want to show others that they can get their money back, also."
The four individual plaintiffs and four worker's rights organizations involved in the lawsuit are being represented by a legal team headed by attorney Elizabeth Wagoner, who is with the New Mexico Center on Law and Poverty, located in Albuquerque.
Wagoner said her office will be asking a judge to rule on the whole case as soon as possible, but said that the department has not been cooperating and is refusing to hand over materials needed to be able to rule on the case.
"We are filing legal briefs to the judge to get a court order to require (the department) to produce the needed witness testimony," she said.
Wagoner said the preliminary injunction hearing in May will determine which orders need to be in place until the time that a final ruling can be made, but said the temporary restraining order is a good first step in the continuing lawsuit efforts.
"This will preserve the status quo, so at least people won't be turned away (by the department)," she said.
Leigh Black Irvin is the business editor for The Daily Times. She can be reached at 505-564-4621.