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Bernalillo County Board of County Commissioners Passes Employee Wellness Act Requiring Paid Time Off

August 22, 2019

On August 20, 2019, the Bernalillo County Board of County Commissioners adopted “The Employee Wellness Act” (the “Ordinance”). The Ordinance requires certain employers within the unincorporated limits of Bernalillo County to provide earned paid time off for employees. It imposes strict requirements for recordkeeping, notice to employees, and compliance obligations, including creating causes of action that may be brought by employees or the County against an employer for violation of the Ordinance.

This does not include employers within the city limits of the City of Albuquerque, the Village of Los Ranchos, or the Village of Tijeras. The effective date: July 1, 2020.

The Ordinance requires employers to provide employees with a minimum of 1 hour of paid time off for every 32 hours the employee worked. At minimum, employers subject to the Ordinance are required to permit the accrual of 24 hours of paid time off per year beginning July 1, 2020, then 40 hours per year beginning July 1, 2021, and ultimately 56 hours per year beginning on July 1, 2022. Employees may carry over any accrued, unused paid time off to the following year. However, an employee may only have the maximum annual amount of accrued unused paid time off at any given time, unless the employer’s policy provides for more.

This earned paid time off may be used for any purpose, and an employer may not count an employee’s use of such time off to discipline, discharge, demote, not promote, suspend or take other adverse action against the employee. In addition, an employer cannot take or threaten action against an employee due to the employee’s exercise or attempted exercise of any rights under the Ordinance, or the employee’s good faith allegation(s) against the employer of violation(s) of the Ordinance.

The Ordinance requires that employers accurately track and record the amount of earned paid time off accrued or used by each employee for each pay period, keep such records for 4 years in addition to the current calendar year, make such records available to the County upon request, and, upon request, inform an employee of the amount of earned paid time off accrued and used by the employee.

Employers subject to the Ordinance must provide to each employee, at the time of employment: (i) notice of the entitlement to earned paid time off, the amount of earned paid time off provided to employees, and the terms under which paid time off can be used; (ii) notice of how an employee must request use of paid time off, (iii) notice that the employer may not retaliate against an employee for requesting or using eligible time off, and (iv) notice that the employee has the right to file a complaint with the County for violation of the Ordinance. Employers may comply by displaying a poster in a conspicuous place accessible to employees that contains the aforementioned information. The County will make the poster available on its website by July 1, 2020.

Employees who believe an employer has violated the Ordinance may file an administrative complaint with the County or bring an action in court against an employer. The County may also bring an action in court if an employee’s complaint is not resolved at the County level. If an employee claim is successful, the employee is entitled to recover all appropriate legal or equitable relief, damages equal to two times the value of paid time off accrued, the costs and expenses of suit, and reasonable attorneys’ fees. Additionally, if the claim is for retaliation or adverse action by the employer for the employee’s exercise or attempted exercise of these rights, the employee will be entitled to recover actual damages, including back pay, and have the right to reinstatement, rescission of discipline, or other appropriate relief. The Ordinance imposes a civil penalty of $50 per week for each violation, not to exceed $500 for each offense (each section of the Ordinance and each employee for whom a violation is identified are counted separately for purposes of identifying a separate offense).

Please contact Benjamin E. Thomas or Robert J. Johnston if you have questions about the Ordinance or if you would like assistance in preparing to bring your employment policies and practices into compliance before the effective date of July 1, 2020.

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