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F I S C A L I M P A C T R E P O R T

SPONSOR Sanchez, M.

ORIGINAL DATE

LAST UPDATED

02/22/07

HB

SHORT TITLE School Personnel Hiring Considerations

SB 1155

ANALYST Hanika Ortiz

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Public Education Department (PED)

Workers Compensation Administration (WCA)

State Personnel Office (SPO)

SUMMARY

Synopsis of Bill

Senate Bill 1155 enacts a new section of the School Personnel Act to prohibit local school boards

from considering prior workers’ compensation claims or preexisting physical impairments in

hiring, terminating or reemploying personnel.

SIGNIFICANT ISSUES

The bill expressly prohibits discrimination based upon disability, which is already prohibited by

the State Human Rights Act Sections 28-1-1 to 28-1-15 NMSA, which provides:

“It is an unlawful discriminatory practice for:

A…an employer, unless based on a bona fide occupational qualification or other

statutory prohibition, to refuse to hire, to discharge, to promote or demote or to

discriminate in matters of compensation, terms, conditions or privileges of

employment against any person otherwise qualified because of race, age, religion,

color, national origin, ancestry, sex, physical or mental handicap or serious medical

condition. . ."

Senate Bill 1155 – Page

2

PERFORMANCE IMPLICATIONS

PED notes the bill is silent on whether, if such prohibited discrimination occurs, a person has a

private right of action against a school district or must first exhaust administrative remedies by

filing a claim with the Human Rights Division as is currently required before commencing

litigation.

ADMINISTRATIVE IMPLICATIONS

PED further notes this bill will only apply to the hiring or firing of school district superintendents

because the enactment of HB 212 (“Education Reform", Laws of 2003, ch. 153, Sections 21 and

25) established that local school boards hired/fired their district superintendents while district

superintendents hired/fired all other employees.

TECHNICAL ISSUES

The PED has provided the following comments:

Inasmuch as this bill could be read to prohibit disability discrimination against an employee of a

school district receiving workers comp. benefits from that school district who is applying for a

different position within the same school distinct, the Workers Compensation Administration

already provides a remedy for retaliation to those having claimed or received benefits. (Section 8

of 11.4.5 NMAC “Any party may initiate a charge of prohibited conduct, bad faith, unfair claims

processing, retaliation or fraud by the filing of a complaint or an application to a judge.")

This bill will prohibit discrimination against someone solely because of his/her status of having

received workers’ compensation benefits. This conflicts with both state and federal law. See,

Kitchell v. Public Service Co.; 1998-NMSC-051 (A person who is disabled and is not an

otherwise qualified handicapped person—that is, someone who is able to meet all of the

program’s requirements in spite of his handicap—is not subject to unlawful discriminatory

practice under the state Human rights Act or Section 504 of the federal Rehabilitation Act of

1973.)

Even though it contains exclusionary language, the bill could be read as requiring school districts

to employ individuals who are disabled regardless of their ability to perform the essential

functions of the school job with or without accommodation. That is inconsistent with the

Americans with Disabilities Act [42 U.S.C. § 12112(a)], which prohibits employment

discrimination against a disabled person who is qualified for a position with or without

reasonable accommodation.

OTHER SUBSTANTIVE ISSUES

The WCA notes that the Workers’ Compensation Act does not recognize the consideration of a

prior workers’ compensation claim in hiring practices. Section 52-1-28.3 allows for the denial of

benefits where the worker misrepresented or did not disclose his medical condition on an

application for employment, so long as the application clearly stated that misrepresentation

would result in a denial of benefits. This bill could create a potential conflict with the Americans

with Disabilities Act. There is no significant impact on the workers’ compensation system in the

enactment of this bill.

Senate Bill 1155 – Page

3

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

The current laws relating to discriminating against individuals with disabilities will remain in full

force and effect and a new category of prohibited discrimination offered by this bill would not be

enacted.

AHO/nt