Handsomely Paid NM Health and Labor Secretaries Turn Blind Eye and Enable Financial Abuse of Direct Care Workers

Left to right – New Mexico Governor Michelle Lujan Grisham’s Health Care Authority Secretary Kari Armijo, Department of Health Secretary Patrick Allen, and Department of Workforce Solutions (Labor) Secretary Sarita Nair.

The phrase “see no evil, hear no evil, speak no evil” is commonly used today to describe someone who turns a blind eye to wrongdoing or chooses not to be involved in a situation.

It aptly applies to the manner by which three of the highest paid state officials have failed to enforce protections for overtime pay for more than a thousand of the lowest paid care workers in New Mexico.

Secretary of Health (DOH), Patrick Allen, is paid more than $205,900 a year.

Secretary of the Health Care Authority (HCA), Kari Armijo, is paid more than $231,700 a year.

Sarita Nair, Secretary of the New Mexico labor enforcement agency, the Department of Workforce Solutions (DWS), is paid even more – $236,891 a year.

All three have very lucrative benefit packages providing them with health care options, generous retirement pay, and significant annual leave.

All three have significant responsibility for the continuation of the misclassification of more than a thousand of the 8,500 Direct Support Professional (DSP’s) workers who provide human to human, necessary, and life-affirming personal care to fellow New Mexicans with disabilities.

That misclassification denies needed pay for food, shelter and care of many financially challenged households, headed in many instances by single working mothers trying to provide for their children.

These are working mothers not making a living wage.

It is particularly unfair when compared to the pay of the secretaries of the agencies which should be authorizing fair pay for these workers and insuring they get that fair pay.

The collective and individual inaction of Secretaries Armijo, Allen and Nair, allows for these workers to be misclassified as “independent contractors” instead of employees.

When an employer engages the work of “independent contractors” they do not have to pay employee expenses such as unemployment and worker compensation costs – and they do not have to pay overtime rates for work over forty hours a week.

These workers are left to fend for themselves all while being paid the lowest wages in health care.

While there are legitimate uses and classification of certain workers as “independent contractors,” the overwhelming number of workers who work as direct service professionals serving the developmentally disabled clients, which the DOH and HCA pays for, are considered under federal labor law to be employees NOT independent contractors.

Yet DOH and HCA have not only allowed, but have also encouraged the provider agencies they fund to underpay these workers, knowing full well that the workers should be classified as employees.

The DOH and HCA over the years have jointly developed the rates paid to the provider agency employers that in turn determine the amount of pay these direct are workers receive.

In official documents prepared for the establishment of those rates, the DOH and HCA claim the division that engages and authorizes the payment for the services of these workers, “does not have the responsibility to ensure providers follow labor laws.”

Nair’s agency, the Department of Workforce Solutions, clearly has the responsibility to enforce the labor laws related to misclassification of workers and overtime pay.

By ignoring the misclassification of these workers DOH and HCA enabled the state contracted provider agencies to evade paying these workers overtime that federal law requires.

The workers affected by the secretaries’ collective indifference are paid between $12/hour and $17/hour.

In November of 2023, Department of Health Secretary Patrick Allen and his sidekick Dr. Jose Acosta pretended they did not have sufficient information to meaningfully respond to questions about provider companies their agency funded to respond to questions of Senator Gerald Ortiz y Pino asked about a lawsuit filed to recoup overtime pay denied to overworked caregivers due to the state not paying the companies sufficiently.

Secretary Armijo, with over twenty years of working on New Mexico Medicaid matters, has or should have been aware of this misclassification of direct care workers, and the failure to pay them fairly.

Armijo, and Secretaries Allen and Nair, have been aware of the class action federal lawsuit filed by direct service workers against a provider agency in southern New Mexico seeking years of overtime pay they were denied – a lawsuit that was recently settled for $1.5 million provided to the workers unjustly denied their overtime pay.

Secretary Nair, the Department of Workforce Solutions boss, has been aware of this injustice since at least February of 2023 – and likely before.

As stated above, her agency clearly has the responsibility to enforce the labor laws related to misclassification of workers and overtime pay.

For almost a month, Nair and her DWS spokesperson have refused to respond to questions as to why they have ignored addressing this matter, or, if they have, how they are addressing it.

According to New Mexico law, her “director of the labor relations division of the workforce solutions department shall enforce and prosecute violations of the Minimum Wage Act.”

The enforcement provisions of the minimum wage act includes oversight of misclassification of workers and enforcement of overtime laws.

In the past few years, only a handful of legislators have tried to address the issues experienced by these workers.

Senators Antoinette Sedillo Lopez, Gerald Ortiz y Pino, Linda Lopez, and Representatives Liz Thomson, Kathleen Cates and John Block, are among those filing legislation and budget amendments impacting direct care workers which The Candle will report on in the next few days.

(Tomorrow, The Candle will publish more details of the way Governor Lujan Grisham’s administration has mistreated workers in a similar manner that her predecessor, Susana Martinez did – which ended only when advocacy groups engaged in litigation.)