June 24, 2015

Case could determine if state is bound by Fair Pay for Women Act

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Minimum WageA pending legal case against the New Mexico Corrections Department may determine whether or not the state must abide by a law requiring equal pay for men and women.

The case goes back to a complaint filed in the First Judicial District Court in 2013 against the Corrections Department by Alisha Tafoya-Lucero, a deputy warden with the state corrections department. The complaint alleges that Tafoya-Lucero is paid less than one of her male colleagues and that the department is in violation of the Fair Pay for Women Act, which Gov. Susana Martinez signed into law less than a year before.

According to the complaint, Tafoya-Lucero earned $10 less per hour than Derek Williams, another deputy warden.

Currently,Tafoya-Lucero is listed as the lowest earning deputy warden, whereas Williams is listed as the top earner for the job classification. The data can be seen using the state’s Sunshine Portal.

In 2013, Martinez signed the Fair Pay for Women Act into law, but attorneys for the Corrections Department have argued that it does not apply to state agencies.

In a 2014 response to the complaint, lawyers with the Hinkle Shanor law firm, representing the state argued that the New Mexico Legislature never intended for state employees to be covered by the act.

From the response:

There is no language in § 41-4-1 indicating that the Legislature intended to waive the State’s immunity to Ms. Lucero’s claim under Fair Pay for Women Act.

The response refers to a law passed by the state legislature in 1996 that gives immunity to the state when it comes to some litigation.

The referenced statute reads:

A governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as waived by the New Mexico Religious Freedom Restoration Act.

In an earlier document filed with the court, the state’s attorneys argued that Tafoya-Lucero was indeed paid less than Williams, not because of gender, but because wages are determined by “a seniority system, merit system, pay system based on quantity or quality of output, and/or factors other than gender.”

The law firm representing the state did not respond to requests for comment by New Mexico Political Report.

In a statement to New Mexico Political Report, the Southwest Women’s Law Center, which advocated for the law, said it is problematic for the state not to comply with the Fair Pay for Women Act.

“As one of the original advocates behind the passage of the Fair Pay for Women Act, The Southwest Women’s Law Center finds it absurd that the state of New Mexico is denying its liability for failing to pay women equally for equal work,” Southwest Women’s Law Center staff attorney Paige Duhamel wrote. “The government is one of the largest employers in New Mexico, and the consequences of claiming an exemption from the Fair Pay for Women Act could have an enormous, harmful impact on the economic security of thousands of women.”

Daniel Faber, a lawyer for Tafoya-Lucero told New Mexico Political Report that both parties are now waiting for the court’s ruling on a motion to dismiss the case.

Faber said if the court rules in the state’s favor, his client will most likely file an appeal. He expects the state to do the same in the event the case is not dismissed.

New Mexico Political Report reached out to Rep. Brian Egolf, D-Santa Fe, who introduced the Fair Pay for Women Act, but he declined to comment so he wouldn’t interfere with an ongoing case.

Martinez signed the Fair Pay for Women Act into law in 2013. She later used the law to criticize Gary King, her Democratic opponent in the 2014 gubernatorial election, in a campaign ad. Martinez’s ad attacked King for a settlement in a case involving equal pay for women.

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