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Appeals court: New Mexico must abide by fair pay act

September 1, 2018

An appeals court on Thursday snubbed the Corrections Department’s argument that the Fair Pay for Women Act does not apply to New Mexico government employees.

Facing lawsuits from women in state government who said they were paid less than male colleagues with similar jobs, the department had argued the state simply did not fall under the 2013 law that prohibited wage discrimination based on gender and allowing workers to seek back wages.

But a three-judge panel of the state Court of Appeals disagreed, giving the nod for a lawyer who had worked at the state’s prison system to proceed with a lawsuit for lost wages after she charged a male colleague with the same position was paid a salary $8,000 higher than her own.

The case now goes back to state District Court in Santa Fe. However, the department could still appeal to the state Supreme Court.

A spokesman for the Corrections Department said the agency was reviewing the decision.

For now, though, the opinion gives more teeth to the law that allows for penalties against discriminatory employers.

“This is a good day for employees in the state of New Mexico,” said Daniel Faber, the lawyer representing several state workers with claims under the act, including Melinda Wolinsky.

Wolinsky in 2016 filed a lawsuit against the Corrections Department charging the agency could not explain why it paid a larger salary to a man hired about a month after her with the same job position and similar duties. She asked not only for damages but triple the amount of pay she had lost, which is allowed under a provision of the law.

The law imposes monetary penalties, allowing workers who are paid unfairly to recover up to six years’ worth of back wages. The law also allows judges to order an employer to pay triple that sum as a punitive measure.

But the department’s lawyers argued the Fair Pay for Women Act does not apply to New Mexico government because the law does not specifically mention the state under its definition of an “employer.”

A state District Court judge agreed in 2016 and tossed the lawsuit.

Wolinsky, who still works in state government, appealed. And in a unanimous decision, the three judges ruled the state is indeed an employer subject to the Fair Pay for Women Act.

No, the law does not specifically mention the state government as an employer, Judge Stephen French wrote. But the state is not expressly exempt, either. The law can be interpreted as applying to legal entities employing four or more workers. So, New Mexico’s government is subject to claims filed under the act, French reasoned.

Judges Monica Zamora and Henry Bohnhoff signed on to the opinion.

The decision comes as the Corrections Department faces other lawsuits for pay discrimination, including from a deputy prison warden who accused the state government of unfairly paying her less than male colleagues.

The department spoke out against the act as it was wending through the Legislature — specifically, the provision allowing judges to charge triple the amount of back pay.

It was the only department to weigh in on the bill besides the State Personnel Office and General Services Department, which handle personnel issues across state government.

Though her administration sought to curtail the law’s scope, Gov. Susana Martinez’s campaign had touted her decision to sign the act when she was running for re-election in 2014.

When her challenger, Democrat Gary King, said he would support equal pay, the Martinez campaign ran an ad accusing him of hypocrisy. The ad noted that three women who worked for King while he was state attorney general sued him for paying them less than male colleagues and the office settled with nominal payments.

The Martinez campaign said even the typically left-leaning American Civil Liberties Union praised her for signing the act.

State government is supposed to provide a sense of how prevalent wage discrimination might be in New Mexico’s civil service. An executive order issued by Martinez’s predecessor, Gov. Bill Richardson, called for the State Personnel Office to issue annual reports on pay equity. But while the executive order remains in place, the office has not published any such reports under the Martinez administration. After an annual audit raised concerns about the lack of reporting, the office has said it will issue a pay equity report this year.

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