by Robert P. Tinnin, Jr.
New Mexico’s Fair Pay for Women Act (FPWA) goes into effect June 14, affecting all employers with at least four employees.
The law prohibits discrimination on the basis of sex “by paying wages to employees . . . at a rate less than the rate that the employer pays wages to employees of the opposite sex in the establishment for equal work on jobs[,] the performance of which requires equal skill, effort and responsibility and that are performed under similar working conditions.”
The law includes an exception for payments made under a seniority system, a merit system, or a “system that measures earnings by quality or quantity of production.” It prohibits retaliation in the form of discriminating against an employee for (1) asserting a claim under the FPWA, (2) assisting another person in doing so, or (3) “informing another person about employment rights or other rights provided by law.”
The FPWA was inspired by the federal Lilly Ledbetter Fair Pay Act, which was passed by Congress to overcome a decision by the U.S. Supreme Court under Title VII of the Civil Rights Act of 1964. The decision imposed a narrow statute of limitations for filing a discrimination suit based on discriminatory compensation practices.
The FPWA provides that an employee may file suit under the Act within two years of his last date of employment (if he no longer works for the employer). Also, back wages may be recovered for a period of up to six years before the date of the last violation of the Act.
Gender-neutral pay equity is guaranteed by the New Mexico Human Rights Act (NMHRA), but under that law, it isn’t settled whether a victim of gender discrimination is entitled to recover back pay for a period exceeding the 300-day statute of limitations.
Dispute resolution questions
The FPWA provides a two-track system for enforcement. An individual claiming violations of the Act may either (1) maintain a claim to establish liability and recover damages and court-ordered relief directly in court on behalf of himself or herself or “on behalf of other employees similarly situated” or (2) seek relief under the NMHRA.
The FPWA’s two-track enforcement scheme raises a number of issues. For example, under the NMHRA, the state and its political subdivisions are included in the definition of “person,” and claims may be pursued against the state and its political subdivisions. The FPWA, however, doesn’t include the state in its definition of “employer” or “person.” So there is a question about whether an individual wishing to pursue a gender pay discrimination claim under the FPWA against the state or one of its political subdivisions may do so if he or she chooses to go directly to court to assert the claim rather than follow the administrative procedure under the NMHRA before going to court.
Another question is whether a jury trial is available in all cases. The FPWA doesn’t specifically provide for jury trials, but they are allowed under the NMHRA. So it might be that a jury trial is available if an employee chooses to pursue a claim under the NMHRA but not if he or she chooses to go directly to court.
The FPWA provides that a court may order appropriate relief for violations of the Act, including requiring an employer to post in its place of business a notice describing the violations that the court found it committed. The law also provides for “all other actual damages” as well as triple damages.
Triple damages may not be imposed against an employer if it “shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that the employer had reasonable grounds for believing” that its actions didn’t violate the FPWA.
The FPWA allows punitive damages for violations, but the dual-track system prescribed by the Act raises questions concerning the availability of punitive damages if the NMHRA track is chosen since the NMHRA prohibits an award of punitive damages.