Growing Our Own Lawmakers

by Mike White, President, NMF&LB

On June 22, the NM Court of Appeals ruled that the farm and ranch exemption from Worker’s Compensation was unconstitutional. The exemption, Section 52-1-6(A) of the NM Workers’ Compensation Act, stated that “The provisions of the Workers’ Compensation Act shall not apply to employers of farm and ranch laborers.” The exemption has been in place since 1937 but the appellate court ruled that it did not comply with the Equal Protection Clause of the state’s constitution.

The ruling was precipitated by two lawsuits – Aguirre vs. M.A. & Sons Chili Products and Rodriguez vs. Brand West Dairy.  While both were filed seeking workers’ compensation benefits, they were denied based on the exemption. When the appellate court ruled the exemption unconstitutional, they also made the benefits retroactive to March 30, 2012. Thus all claims pending as of that date, and all filed after that, are eligible.

Of course that creates a huge window of vulnerability for our state’s food producers since the law has been changed mid-stream. Claims will possibly be filed for workers’ comp for a time when farmers and ranchers weren’t required to carry insurance. This liability is unfathomable, and irresponsible on the part of the NM Court of Appeals. Fortunately the State Supreme Court can change the retroactive aspect of the ruling or the entire ruling if they deem it constitutional.

What they cannot change is the fact that the Workers’ Comp Administration is treating the ruling as if it were law. They are now enforcing workers comp regulations as they apply to farms and ranches, which means you need coverage now.  Recently, Darin Childers, Director of the Workers Comp Administration and Rachel Bayles, General Counsel, spoke with farmers and ranchers about the details of the law’s application. They reminded us that you are required to have workers’ comp insurance if you have three or more employees, and yes, family members can count as employees, as do part time workers. Concerns about migrant workers, contract laborers and seasonal employees fell on deaf ears. They recommended that if you do use contract labor, you should ask to see a current certificate of insurance. If that insurance is absent, or has lapsed, you will be responsible in the case of an accident.

The WCA will be calling farmers and ranchers to verify that they have insurance, and they will be following calls from a tip line indicating that some may be operating without insurance. While we would like to think our fellow food producers are more ethical, Ms. Bayles explained that most investigations are the result of competitor tips. We fear that most tips will come from the Center on Law and Poverty. This form of vigilante law can have a devastating effect on your farm or ranch.

If you are required to have workers’ compensation insurance coverage and you don’t, you will be contacted by the Employer Compliance Bureau of the WCA. If you refuse to obtain coverage, you will be in violation of mandatory insurance provisions and the WCA can seek a restraining order to shut down your business until insurance is obtained. You may also face penalties of up to $1,000 per day that you are in violation of insurance requirements.

Fortunately, Farm Bureau Financial Services offers workers’ comp insurance.  Please contact your agent and make arrangements for coverage.