Wage theft settlement approved, changes how complaints investigated

Jose “Pancho” Olivas, a plaintiff in a class-action lawsuit against the state Department of Workforce Solutions over how it handles wage theft complaints, shakes hands Friday with another plaintiff following the judge’s approval of a final settlement in the case. Andy Stiny/The New Mexican

They exchanged hugs, handshakes and congratulations in Spanish and English, both inside and outside the Santa Fe courtroom Friday afternoon. They came from the Navajo Nation, Santa Fe, Albuquerque, Farmington and Gallup, but they all had one thing in common.

They were low-wage workers who charged in a lawsuit against the New Mexico Department of Workforce Solutions that they were victims of wage theft. Their employers didn’t pay or underpaid them, they said, but when they filed complaints, the state did not investigate and failed to enforce wage payment laws.

State District Judge David Thomson gave final approval Friday to an agreement worked out last year and commended the plaintiffs and the state agency. “It was a good resolution to a difficult issue,” Thomson told the courtroom where about 30 plaintiffs and their battery of attorneys and supporters were present.

Under the agreement, Workforce Solutions will now reopen investigations into cases that were previously closed and will begin to investigate cases with wage theft claims over $10,000, which it had declined to investigate in the past.

After spelling out what plaintiffs’ attorneys and attorneys for Workforce had cooperatively agreed on, lead attorney Elizabeth Wagoner with the New Mexico Center on Law and Poverty said a key reason for the hearing was to hear any objections to the agreement. There were none, but four people who alleged they were victims of wage theft, including Jose “Pancho” Olivas, who was the lead plaintiff in the case when it was filed in 2017, addressed the court. The litigation had been joined by several workers’ rights organizations including Somos Un Pueblo Unido and the Center on Law and Poverty.

Olivas, a member of Somos Gallup, said he moved his family to Farmington in 2014 to help remodel a restaurant and get it operating. He and his wife worked there for six months.

“I would work between 65 and 100 hours per week, but the owner would always pay me far fewer hours than I worked,” Olivas told the court. “And my wife would not get paid at all.” Olivas tried to file a complaint with Workforce Solutions shortly after he left the job in 2015. “But they [Workforce] sent me a letter saying they could not take my case because I was owed more than $10,000.”

That cap has been eliminated under the agreement, lead attorney Elizabeth Wagoner told the court, and Olivas’ case will now be reopened. Olivas said he joined the class-action lawsuit because he “thought it was wrong the department would not investigate my case because my ex-boss had stolen too much of my hard-earned money.”

Another party to the lawsuit, Madeline Cadman of Tohlakai on the Navajo Reservation, also addressed the court. She said she worked for a home care service provider for 12 years and in 2009 became a field coordinator and would get paid an extra $15 per week for 16 hours of work.

“I estimated close to 3,000 hours in unpaid wages and overtime,” Cadman told the judge. “I am looking forward to my case moving forward and finally getting the justice and the wages that I deserve.”

Attorney Wagoner told the court the state agency had sent out 2,50o notices to class-action members and had received no objections to the settlement. No money was sought in the lawsuit, only “injunctive relief,” she said.

The settlement requires that the department “vacate prior practices” including not investigating claims over $10,000; abandon prior procedures on investigating wage theft claims; stop the practice of requiring that claimants make their claims in English; and use a new “investigative manual,” which is almost 200 pages, in future investigations. “We are close to a final version now,” Wagoner told the court.

There also will be radio ads to inform claimants of the right to reopen claims for one year after Friday’s settlement approval.

Gabriela Ibanez Guzman, staff attorney for Somos Un Pueblo Unido, told the court, “We look forward to seeing it help recoup their unpaid wages.”

Workforce Solutions attorney Daniel Apodaca said they had worked closely with the plaintiff’s attorneys on the settlement. “We are very much in favor of the settlement,” he told the court.

After the hearing, five Somos clients — three former and two current employees of the Santa Fe Bar and Grill — announced that they have filed wage theft complaints unrelated to Friday’s settlement. “I don’t think there is any validity to it,” business owner Robbie Day said Friday.

Day said he received a letter a week ago from the National Labor Relations Board. He said the lead complainant is a disgruntled former employee. He noted that he has about two dozen kitchen workers who have not joined the complaint. Day said the National Labor Relations Board told him they would look into it “to see if it will go forward.”

Contact Andy Stiny at 505-986-3007 or astiny@sfnewmexican.com.

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