Albuquerque, New Mexico, Paid Sick Leave Initiative, Ordinance (October 2017)

• Text of measure
  • Ballot question
• Path to the ballot
• See also
  • External links
  • Footnotes
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Ordinance: Albuquerque Paid Sick Leave Initiative
The basics
Election date:
October 3, 2017
Status:
d Defeated
Topic:
Local labor and unions
Related articles
Local labor and unions on the ballot October 3, 2017 ballot measures in New Mexico Bernalillo County, New Mexico ballot measures Albuquerque 2017 elections
See also
Albuquerque, New Mexico

A citizen initiative creating a paid sick leave requirement ordinance was on the ballot for Albuquerque voters in Bernalillo County, New Mexico, on October 3, 2017. It was defeated.

A yes vote was a vote in favor of a citizen initiative allowing all employees to accrue paid sick leave at a rate of 1 hour for every 30 hours worked and allow employees of large businesses—40 or more employees—to use at least 56 hours, or seven days, of paid sick leave per year and employees of small businesses—fewer than 40 employees—to use at least 40 hours, or five days, of paid sick leave per year.

A no vote was a vote against a citizen initiative allowing all employees to accrue paid sick leave at a rate of 1 hour for every 30 hours worked and allow employees of large businesses—40 or more employees—to use at least 56 hours, or seven days, of paid sick leave per year and employees of small businesses—fewer than 40 employees—to use at least 40 hours, or five days, of paid sick leave per year.

The initiative was written to take effect 90 days following the enactment date of the initiative.

Election results

Ordinance
Result		Votes	Percentage
d No		46,059	50.39%
Yes		45,344	49.61%

Election results from Albuquerque Elections Office

Initiative design

Paid sick leave

The initiative was designed to allow all employees to accrue paid sick leave at a rate of 1 hour for every 30 hours worked. It also would have required large businesses to allow employees to use at least 56 hours, or seven full days, of paid sick leave per year and small businesses to allow employees to use at least 40 hours, or five full days, of paid sick leave per year.

The initiative was written to allow paid sick leave to be used for the following purposes—applied to both the employee and the employee's family:

• treatment or diagnosis of mental or physical illness, injury, or health condition;
• preventative care;
• absence related to the closure of a business place, school, or care facility for public health reasons;
• absence directly related to domestic violence, sexual assault, or stalking.

The initiative ordinance would have defined small businesses as those with fewer than 40 individual employees—counting part-time hourly, full-time hourly, and salaried workers. A work week of salaried workers and others exempt from federal and state overtime rules would have been counted as no more than 40 hours.

Accrual of paid sick time would have begun on the first day of employment. Any earned sick time would have carried over from one year to the next. The initiative was also designed to carry sick time over if an employee is fired or leaves a company but is rehired within 12 months.

Under the initiative, businesses would not have been required to allow paid sick leave in advance of its accrual, but they would have been permitted to do so. Likewise, any paid leave policies that meet or exceed the provisions of the initiative would not have been affected by the initiative.

Documentation

Under the initiative, employers would not have been allowed to require documentation in any instance of more than three consecutive days of paid leave used showing that leave was taken for a permitted purpose. Employers, however, would not have been allowed to require details about medical conditions, domestic violence, sexual assault, or stalking. Moreover, the initiative would have required businesses to treat disclosed information as confidential and to reimburse all out-of-pocket expenses paid by the employee to obtain documentation required by the employer.

Enforcement and notification

The office of the city attorney or a separate city agency established or designated by the mayor would have been tasked with enforcing the initiative. A provision of the initiative was designed to require employers to provide a notice of the law to all new employees and to post it in a conspicuous place in the business. The city attorney or other designated enforcing department would have been required to create the notice and post it on the department's website. Moreover, the initiative was written to allow lawsuits alleging the violation of the initiative to be filed by the city attorney or another enforcing department or any person alleging damages because of a violation of the initiative. Any group of which a member claims damages because of a violation could have also filed a lawsuit. Any employers found guilty of a violation or violations would have been subject to the following penalties:

• reimbursement of all legal expenses and attorney's fees to the plaintiff(s);
• payment of three times the value of any unpaid sick time accrued by the plaintiff(s);
• a civil penalty of $50 per week for each violation up to a total of $500 per employee.

In cases of violations relating to intimidation or retaliation, employers would have also been required to rehire any separated employees or provide other appropriate relief.

Intimidation and retaliation provisions

The initiative was designed to prohibit employers from retaliating against or intimidating any employee in relation fo paid sick leave taken according to the initiative or allegations of violations of the initiative. The initiative was designed to put the burden of proof on employers to show that any action taken against an employee within 90 days of the employee taking paid sick leave or alleging a violation was not retaliation or intimidation as defined by the initiative. In other words, any such adverse action within a 90-day window after an employee exercises a provision of this initiative would have been presumed to be a violation under the initiative unless proven otherwise. Prohibited actions include the following:

• disciplinary action,
• discharge,
• suspension,
• assignment of less desirable duties,
• reduction in pay or hours,
• application rejection,
• the filing of any report against the employee or employee's family with law enforcement, and
• threats.

Changes by the city council

The initiative was designed to permit the city council to make changes to the law for the sake of implementing it or enforcing it. The initiative ordinance, however, was written to require voter approval for any substantive changes that change the effective date of the law or reduces the requirements or the scope of the law.

Text of measure

No ballot summary was provided on the ballot for this ordinance following the mayor vetoing the city council resolution providing a ballot summary. After the veto, the city council voted to put the full text of the ordinance on the ballot without any explanatory language.

Full text

The ballot question was as follows:

“ An initiative Ordinance of the City of Albuquerque Amending Title 13 of the Albuquerque Municipal Code to Allow Employees to Accrue and Use Sick Leave; Establishing Procedures for Notice, Recordkeeping, and Enforcement. WHEREAS, approximately 49% of private sector workers and 77% of part-time workers in Albuquerque lack paid sick time, which compels them to work when they should be recuperating from illness or injury and increases the risk of passing illness to others. BE IT ORDAINED, BY THE PEOPLE OF THE CITY OF ALBUQUERQUE: § 13-16-1. SHORT TITLE This article may be cited as the “Albuquerque Healthy Workforce Ordinance.” § 13-16-2. DEFINITIONS CITY. The City of Albuquerque. DEPARTMENT. The Office of the City Attorney, unless the mayor designates a different city agency. DOMESTIC PARTNER. A person with whom another person maintains a household and a mutual committed relationship, without a legally recognized marriage. EMPLOYEE. Any person an employer suffers or permits to perform work, or hires with the expectation of performing work, for monetary compensation for at least 56 hours in a year within the municipal limits of the city, including on a part-time, seasonal or temporary basis. EMPLOYER. An EMPLOYER is as defined in Section 13-12-2 of this Code or any nonprofit organization, partnership, association, corporation, or charitable trust with a physical premises within the City of Albuquerque. EMPLOYER shall not include the State of New Mexico or any employee thereof. FAMILY MEMBER. A spouse or domestic partner; a child, sibling, parent, grandparent, grandchild, or legal ward or guardian of the employee or of the employee’s spouse or domestic partner (whether of a biological, foster, adoptive or step relationship), and the spouses or domestic partners of these individuals; a person to whom the employee stands or stood in loco parentis; or any other individual related by blood or affinity whose close association with the employee or employee’s spouse or domestic partner is the equivalent of a family relationship. LARGE EMPLOYER. An employer that is not a small employer as defined herein. PAID SICK TIME. Time that is compensated at the same hourly rate and with the same benefits, including health care benefits, as the employee normally earns during hours worked and is provided by an employer to an employee for the purposes described in section 13-16-3 of this article, but in no case shall the hourly wage be less than that provided in Chapter 13, Article 12 of the Albuquerque Code of Ordinances. SMALL EMPLOYER. An employer of fewer than forty (40) individual employees. In determining the number of employees, all employees shall be counted whether they are full-time, part-time or temporary employees and whether or not they perform work within the City. When the number of employees fluctuates in any year, the number of employees shall be determined by the number of individuals employed in the previous year. § 13-16-3. PAID SICK TIME (A) An employer shall provide employees accrued paid sick time for: An employee or employee’s family member’s mental or physical illness, injury or health condition; including medical diagnosis, care, treatment, or recovery; for preventive medical care; for closure of the employee’s place of business or family member’s school or place of care for public health reasons; or for absence necessary due to domestic violence, sexual assault or stalking suffered by the employee or employee’s family member, provided the leave is to obtain medical or psychological treatment, relocate, prepare for or participate in legal proceedings, or obtain related services. (B) Employees shall accrue a minimum of one hour of paid sick time for every 30 hours worked. Employees of large employers cannot use more than 56 hours of paid sick time in a year, and employees of small employers cannot use more than 40 hours of paid sick time in a year, unless the employer’s policy provides for a higher limit. Paid sick time shall begin to accrue on the first day of employment. Employees shall be entitled to use accrued paid sick time beginning on the 90th calendar day following the first day of employment or the effective date of this law, whichever is later, unless the employer’s policy provides that employees may use accrued time earlier. Employees exempt from overtime requirements under federal and state law will be assumed to work no more than 40 hours in each work week for purposes of paid sick time accrual. (C) Paid sick time shall be carried over to the following year. If an employee is transferred but remains employed by the same employer, or if a successor employer replaces the original employer, or if an employee separates from employment but is rehired by the same employer within 12 months, the employee is entitled to all previously accrued paid sick time, unless it was paid out. An employer may, but is not obligated to, loan paid sick time to an employee in advance of accrual by such employee or pay out unused accrued paid sick time when an employee separates from employment. (D) An employer with a paid leave policy that meets or exceeds the requirements of this Ordinance is not required to provide additional paid sick time or in any way reduce the benefits provided to employees. (E) An employer may require reasonable documentation that paid sick time has been used for a covered purpose only if the employee uses 3 or more consecutive paid sick days. An employer may not require that the documentation explain the nature of any medical condition or the details of the domestic violence, sexual assault, or stalking. All information an employer obtains related to the employee’s reasons for taking paid sick time shall be treated as confidential and not disclosed except with the permission of the affected employee. If an employer chooses to require documentation for paid sick time, the employer is responsible for paying all out-of-pocket expenses the employee incurs in obtaining the documentation. § 13-16-4. EXERCISE OF RIGHTS PROTECTED; RETALIATION PROHIBITED. An employer shall not intimidate, retaliate, discipline, discharge, suspend, assign to less favorable duties, refuse to hire, reduce pay or hours, refuse to assign additional hours, report an employee or an employee’s family member to any law enforcement agency, or take or threaten any adverse action whatsoever against an employee because the employee has exercised rights protected under this Ordinance or has in good faith alleged violations of this Ordinance, whether mistakenly or not. There shall be a rebuttable presumption of a violation of this section whenever an employer takes any adverse action against a person who, within 90 days, exercised rights protected under this Ordinance or has in good faith alleged violations of this Ordinance, whether mistakenly or not. An employer shall not require an employee to find a replacement worker as a condition of using paid sick time or count use of paid sick time in a way that will lead to any adverse employment action. § 13-16-5. NOTICE AND RECORDS. On or before the effective date of this Ordinance, the Department shall make available on its website a summary notice to employees in English and Spanish of each provision of this Ordinance. Employers shall provide this notice to each employee on the first day of employment, and shall post it in a conspicuous place in each establishment where employees are employed. Employers shall maintain payroll records for each employee showing the weekly hours worked, wages paid, and amount of paid sick time accrued or used each pay period, and shall print this information in the written receipt required by NMSA § 50-4-2. All records shall be retained for four years and made available for inspection and copying upon request by the Department or the employee. Failure to maintain records shall give rise to a rebuttable presumption that the employer has violated this Ordinance, and the fact finder may rely on employee’s reasonable estimates in calculating damages. § 13-16-6. ENFORCEMENT. The Department shall implement and enforce this article, shall have investigation and inspection authority as provided in 29 U.S.C. section 211(a), shall enforce this article on behalf of an aggrieved worker upon receipt of an individual worker complaint and/or on a workplacewide basis when the investigation reveals a general policy or practice of noncompliance, and shall promulgate appropriate guidelines or rules for such purposes. The Department shall have the power to impose penalties payable to the city for violations of this article and to grant an employee(s) or former employee(s) all appropriate relief. The Department shall maintain confidential the identity of any complainant provided, however, that with the authorization of such person, the Agency may disclose his or her name and identifying information as necessary to enforce this Ordinance or for other appropriate purposes. The Department or any person or any entity a member of which is aggrieved by a violation of this article may bring a civil action individually or as a class action under state law in a court of competent jurisdiction within four years from the date the alleged violation occurred. Upon prevailing, the plaintiff or plaintiffs shall recover all appropriate legal or equitable relief, the costs and expenses of suit and reasonable attorney’s fees, and liquidated damages calculated at three times the value of the unpaid sick time accrued; and in the case of retaliation, the plaintiff shall recover actual damages, including but not limited to back pay, and shall have a right to reinstatement or other appropriate relief. Any employer found to be in violation of this article shall also be liable for a civil penalty of fifty dollars per week for each separate violation, not to exceed five hundred dollars per employee. § 13-16-7. RELATIONSHIP TO OTHER REQUIREMENTS. (A) This article shall not be construed as creating or imposing any requirement in conflict with, nor to preempt or otherwise limit or affect the applicability of, any other law, regulation, requirement, policy, or standard that provides for more generous compensation, rights, benefits, or protections. Nothing contained in this article prohibits an employer from establishing more generous policies than those established under this Ordinance. (B) This article shall not be construed to diminish or impair the rights or obligations of an employee or employer under any valid contract, collective bargaining agreement, employment benefit plan or other agreement providing more generous paid sick time to an employee than required herein. Employers subject to this Ordinance may by collective bargaining agreement provide that this Ordinance shall not apply to employees covered by that collective bargaining agreement. § 13-16-8. SEVERABILITY. If any section, paragraph, sentence, clause, word, or phrase of this Chapter is for any reason held to be invalid or unenforceable by any court of competent jurisdiction or if application thereof to any person or circumstance is judged invalid, such decision shall not affect the validity of the remaining provisions of this Chapter. § 13-16-9. COMPILATION. This Chapter shall, amend, be incorporated in, and made part of the Revised Ordinances of Albuquerque, New Mexico, 1994. § 13-16-10. EFFECTIVE DATE. This Ordinance takes effect 90 days following the date of enactment or on the date of termination of any collective bargaining agreement. § 13-16-11. AMENDMENT BY CITY COUNCIL. This Chapter may be amended by the City Council without a vote of the people as regards the implementation or enforcement thereof, in order to achieve the purposes of this Chapter, but not in a manner that alters the effective date or lessens the substantive requirements of this Chapter or its scope of coverage. ”

Support

The initiative was sponsored by Healthy Workforce Albuquerque.

Supporters

• The Democratic Party of New Mexico
• El Centro de Igualdad y Derechos
• The New Mexico Center on Law and Poverty
• OLÉ
• Strong Families
• SouthWest Organizing Project

Businesses

The Healthy Workforce Albuquerque website listed the following companies as supporters of the initiative:

• Albuquerque ACP Security
• AKIS Fitness
• Banks Electric
• Breve Crepes & Coffee
• Caterpillar Clubhouse Daycare
• Conchita's Cafe
• Donut Mart
• Fano Break
• Free Radicals
• Grassroots Yoga
• H R Photography
• Kei & Molly Textiles, LLC
• LUX Lash and Beauty Bar
• Native Community Development Associates
• Nexus
• Our Montessori School
• Sani Yoga
• Sole Comfort
• Teddy Bear Pre-School and Day Care
• Big B’s Body Jewelry
• Caddiz Customz
• Dancing Crane
• Double J’s Cleaning Services
• Dr. Kristin Rabai Chiropractor
• Gold Star Academy
• J.A. Gamboa Financial
• Los Ninos Montessori
• Moustache Studio
• New Mexico Beef Jerky
• Pro Nails
• Raigoza Wealth Management
• Susan @ Inspire Salon

Arguments

Supporters argued that there are over 100,000 workers in Albuquerque with no paid sick leave, which results in people going to work when they should be recovering or seeing a doctor.

New Mexico Democratic Party Chair Richard Ellenberg said, “Democrats support policies that keep our families healthy and employed. The community has an opportunity to ensure Albuquerque workers are treated fairly, and we are encouraging voters to vote ‘yes’ on the paid leave ballot initiative. Keeping employees and families healthy makes good business sense--healthy families mean a healthy workforce.”

The introductory statement within the initiative's text states, "...approximately 49% of private sector workers and 77% of part-time workers in Albuquerque lack paid sick time, which compels them to work when they should be recuperating from illness or injury and increases the risk of passing illness to others."

Opposition

Opponents

Organizations

The following organizations were listed as opponents of the initiative by the opposition campaign:

• Albuquerque Economic Development
• Albuquerque Economic Forum
• Albuquerque Hispano Chamber of Commerce (AHCC)
• American Subcontractors Association NM (ASA-NM)
• Americans for Prosperity
• Apartment Association of NM (AANM)
• Associated Builders & Contractors NM (ABC)
• Associated General Contractors (AGC)
• Commercial Association of REALTORS® (CARNM)
• Greater Albuquerque Innkeepers Association (GAIA)
• Greater Albuquerque Association of REALTORS® (GAAR)
• Greater Albuquerque Chamber of Commerce (GACC)
• Home Builders of Central NM (HBA)
• Mechanical Contractors Association of New Mexico (MCA)
• National Association of Women Business Owners (NAWBO)
• National Federation of Independent Business (NFIB)
• NAIOP Commercial Real Estate Development Association
• New Mexico Association of Commerce & Industry (NMACI)
• New Mexico Business Coalition (NMBC)
• New Mexico Chile Association (NMCA)
• New Mexico Council of Outfitters and Guides (NMOG)
• New Mexico Hospitality Association (NMHA)
• New Mexico Independent Automobile Dealers Association (NMAIDA)
• New Mexico Restaurant Association (NMRA)
• New Mexico Retail Association (NMRA)
• New Mexico Roofing Contractors Association (NMRCA)
• New Mexico Utility Contractors Association (NMUCA)
• Rio Grande Foundation
• Santa Fe Chamber of Commerce
• Sheet Metal & Air Conditioning Contractors Association of NM (SMACNA)
• Visit Albuquerque

Arguments

Opponents argued that the initiative would hurt the economy by damaging both large and small businesses. Opponents argued that the provisions of the initiative putting the burden of proof on employers for any adverse actions against employees within 90 days of taking sick leave would be too extreme and could be abused. Opponents also argued that the penalties within the initiative would be too harsh. Opponents criticized the voter approval requirement within the initiative for any substantive changes to the law that lessen paid leave requirements, arguing that the requirement would hinder the city council from making changes for the benefit of employees, businesses, and the economy. Opponents also argued that the initiative would be challenged and overturned in court.

Michelle A. Hernandez, chair of the Albuquerque Hispano Chamber Of Commerce, wrote, "This is not the right way to create public policy. This proposed policy has not been drafted as a result of debate and consideration of the resulting consequences on everyone, including employees and businesses. Voters are being asked to approve an ordinance that has not been adequately vetted. No effort has been taken to identify and prevent unintended consequences that will adversely affect individual Albuquerque residents, as well as strangle nonprofits and mom-and-pop businesses in Albuquerque, from the Sandia foothills to the lower Rio Grande Valley."

Editorials

Support

If you know of an endorsement by a media outlet editorial board that should be posted here, please email editor@ballotpedia.org.

Opposition

• Albuquerque Journal: "If you read just the first two paragraphs of the proposed Healthy Workforce Ordinance [...] you’d probably vote for it. We sure would. But if you read the entire 1,900-word document, chock-full of legalese and crammed onto the back of the Oct. 3 municipal election ballot in type so small many voters will need a magnifying glass, you’ll find plenty of reasons not to. [...] The Journal strongly urges voters to vote AGAINST this job-killing ordinance and demand their civic, business and city leaders deliver a better alternative for all involved."

Path to the ballot

See also: Laws governing local ballot measures in New Mexico

This measure was put on the ballot through a successful initiative petition campaign. Proponents needed to collect valid signatures equal to 20 percent of the 20 percent of the votes last cast for mayor. This requirement amounted to 14,116 signatures for this initiative. Petitioners succeeded in collecting the required signatures, submitting about 25,000 signatures in July 2016. Enough of the submitted signatures were verified to require the Albuquerque City Council to either approve the initiative or vote to send it on to the Bernalillo County Commissioners and then on to the voters. On August 1, 2016, the city council voted against enacting the initiative directly and sent it, instead, to the county commissioners, who were tasked with deciding what election ballot to put the measure on. Ultimately, the initiative was put on the October 2017 ballot instead of the November 2016 ballot.

Ballot summary

A ballot summary describing the ordinance was crafted for this initiative by the city council, but the resolution putting the summary on the ballot was vetoed by the Mayor Richard Berry, who said the summary would mislead voters. Following the veto, the city council approved a resolution putting the full text of the initiative on the ballot without any explanatory language. This process also delayed an election on the initiative from November 2016 to October 3, 2017.

Lawsuit

  

Lawsuit overview
Issue: Single-subject rule and constitutionality; whether or not the state's single-subject rule applies to the initiative ordinance; whether provisions within the initiative—criminal penalites and fines—are outside the scope of the city's legislative authority; whether city initiatives, as such, violate the state constitution
Court: Filed in district court and appealed to the New Mexico Supreme Court
Ruling: Ruled in favor of defendants in both courts, dismissing the request to block the initiative from the ballot and ordering that it be put before voters.
Plaintiff(s): Kaufman Fire Protection Services, Inc., Don Kaufman, the Association of Commerce and Industry, NAIOP, and the New Mexico Restaurant Association	Defendant(s): the city of Albuquerque, the Albuquerque City Council, Natalie Howard in her official capacity as city clerk, Organizers in the Land Of Enchantment, El Centro De Igualdad Y Derechos, Ole Education Fund, and Rebecca Glenn
Plaintiff argument: The initiative violates the state's single-subject rule for legislation; the initiative amends criminal law, which state law prohibits local governments from doing; the initiative provides for a penalty greater than a petty misdemeanor, which is also prohibited by state law; the local initiative process, as such, violates the state constitution; the initiative's definition of certain terms puts the law outside of the city's scope and jurisdiction.	Defendant argument: The state's single-subject rule doesn't apply to city ordinances; the initiative does not directly alter criminal law or provide for a penalty greater than a misdemeanor, and no evidence is available to show it would indirectly do so since the initiative hasn't been enacted or enforced; the state constitution does not prohibit home-rule charter cities from establishing a process for citizen initiatives; the initiative only applies to businesses and employers within the city and is, therefore, within the scope of city law.

  Source: District Court Ruling and Albuquerque Journal

Recent news

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Albuquerque, New Mexico, Paid Sick Leave Initiative, Ordinance (October 2017) - Google News

See also

Local measures

• Local measures in 2017
• Local labor and unions on the ballot

• Bernalillo County measures

New Mexico

• October 3, 2017 measures in New Mexico
• Local ballot measures, New Mexico
• Albuquerque, New Mexico

• Municipal elections in Albuquerque, New Mexico (2017)

News and analysis

• State and local preemption conflicts
• Measures advancing national agendas

Additional elections

• Albuquerque mayoral election
• Albuquerque City Council election

External links

Suggest a link

• Bernalillo County Elections Office website

Support

• Healthy Workforce ABQ website
• Health Workforce ABQ Facebook

Opposition

• Albuquerque Coalition for a Healthy Economy website
• Albuquerque Coalition for a Healthy Economy facebook