Employment & Labor in New Mexico

State snapshot

Key considerations

Which issues would you most highlight to someone new to your state?

In many aspects of labor and employment law applicable to private employers, New Mexico follows federal law. In 2019 the New Mexico legislature enacted a number of new laws with implications for private employers.

New employment laws 2019Sexual orientation and gender identity have been protected characteristics under New Mexico discrimination law for employers with at least 15 employees. Effective as of June 14, 2019, these protections will apply to employers with at least four employees (2019 N.M. Laws Ch. 96, § 1).

New Mexico permits certain persons to use marijuana for medical purposes. As of June 14, 2019, it will be unlawful for an employer to discriminate against an applicant or employee based on conduct allowed by the New Mexico medical marijuana law, subject to several important exceptions (2019 N.M. Laws Ch. 247, § 11).

Effective as of June 14, 2019, New Mexico will implement a “ban the box” requirement, limiting employers’ ability to inquire about arrest or conviction history on a written or electronic employment application (2019 N.M. Laws Ch. 176, § 2).

Effective beginning January 1, 2020, the state-wide minimum wage rate will increase, and will increase annually each year thereafter until January 1, 2023 (2019 N.M. Laws Ch. 114, § 2). Three of the state’s largest cities (Santa Fe, Albuquerque, and Las Cruces) have local minimum wage rates that exceed the state-wide minimum wage, and which have automatic increases. Santa Fe County and Bernalillo County also have their own local minimum wage ordinances.

Key issues in New MexicoNew Mexico has specific statutes addressing the manner and time for payment of wages on termination of employment (NMSA § 50-4-4 and following).

New Mexico has some employment laws specifically applicable to the healthcare industry. It has invalidated restrictive covenants for certain healthcare providers (NMSA § 24-1I-1 and following). Effective as of June 14, 2019, New Mexico will enact a Safe Harbor Act, providing protections for nurses who, in good faith, refuse to carry out an order (2019 N.M. Laws Ch. 52).

Overtime pay is required for non-exempt employees on a weekly basis. Despite some overlap, New Mexico’s overtime exemptions differ from federal overtime exemptions, so both New Mexico state and federal law must be analyzed for exemption purposes.

Effective as of June 14, 2019, the Caregiver Leave Act will require employers providing sick leave to allow an eligible employee to use accrued sick leave to care for certain family members (including spouses, domestic partners, or certain other specific family members by blood, marriage, or legal adoption) on the same terms and procedures as the employer allows employees to use accrued sick leave for the eligible employee (2019 N.M. Laws Ch. 177, §§ 1-4).

New Mexico has limitations on deductions that can be made to an employee’s pay; employers need to carefully consider deductions and authorizations for appropriate deductions at or subsequent to the time of hire (NMSA § 50-4-2).

It is unlawful in New Mexico for an employer to request or require a prospective employee to provide a password to gain access, or to otherwise demand access, to the prospective employee’s account or profile on a social media networking website (NMSA § 50-4-34).

Employers must report new hires to the state in a timely manner, for inclusion in the new hire directory (NMSA § 50-13-3(F)).

New Mexico discrimination law includes protections for “physical or mental handicap or serious medical condition” (N.M. Stat. Ann. § 28-1-7). Employers will want to clearly understand the scope of the definitions of other protected categories of “physical or mental handicap” and “serious medical condition.”  Subsequent cases have not completely explored if or how these categories may differ from protected disabilities under federal law, but the courts consider and follow federal law defining a disability for purposes of the state’s antidiscrimination law (Pino v. Galles Chevrolet Co., No. 27,738, 2008 N.M. App. Unpub. LEXIS 54, at *8 (Ct. App. October 20, 2008) (noting that a “temporary injury with minimal residual effects cannot be the basis for a sustainable claim” under either federal or state law); cf. NMAC 9.1.1.7(R, P, Z) (regulation defining “serious medical condition,” “physical or mental handicap,” and “major life activities”)). 

What do you consider unique to those doing business in your state?

As part of its economic development policies, New Mexico offers some attractive tax incentives to certain employers.

Its tax credit incentivizes employers to create certain high-wage paying jobs in New Mexico (NMSA § 7-9G-1).    

Employers in the film industry may be able to claim a cash rebate on expenditures, including moneys expended on certain wages, depending on the circumstances (2019 N.M. Laws Ch. 87).

Is there any general advice you would give in the labor/employment area?

In the absence of a contract, employment relationships in New Mexico are presumed to be at will, and terminable for any lawful reason with or without cause or notice. However, New Mexico courts have held that an implied contract may be created through written or oral statements and course of conduct, including oral representations made by managers or statements contained in employee handbooks or other materials. Implied contract claims can arise from representations and conduct occurring both before and after hire. It is important that employee handbooks and other employment documents include express disclaimers that such handbooks or documents do not constitute a contract, either express or implied. A disclaimer will not necessarily preclude a finding of implied contract, as courts will consider “the totality of the parties’ conduct” to make the determination on a case-by-case basis.

Emerging issues

What are the emerging trends in employment law in your state, including the interplay with other areas of law, such as firearms legislation, legalization of marijuana and privacy?

A number of employment bills from the 2019 legislative session have been enacted into law, substantially changing employment law in New Mexico in several areas. These include bills:

• rejecting “right to work” as a matter of state-wide policy;
• invalidating local “right to work” ordinances;
• implementing a “ban the box” provision limiting employers’ ability to inquire about arrest and conviction history in written and electronic applications;
• creating protections for employees using marijuana pursuant to the state’s medical marijuana law;
• increasing the state-wide minimum wage;
• expanding of protections relating to sexual orientation and gender identity;
• requiring employers to allow employees to use any sick leave offered by the employer for the purposes of caring for certain family members; and
• increasing protections from exposure to second-hand smoke.   

To date, there is little guidance from New Mexico courts to assist employers in determining the extent of any obligation to provide a reasonable accommodation of an employee’s use of marijuana for medical purposes under New Mexico’s medical marijuana law. This interplay will be an important area to watch for future developments.

Proposals for reform

Are there any noteworthy proposals for reform in your state?

Unsuccessful bills have been introduced in past legislative sessions to create a state law paid family and medical leave act and to require accommodation for pregnancy. There have also been proposals to automatically increase the state-wide minimum wage with a cost of living adjustment. These proposals may be revisited in future legislative sessions. It remains to be seen whether any of the bills will be enacted and how they may affect New Mexico employers.

Employment relationship

State-specific laws

What state-specific laws govern the employment relationship?

Chapters 28, 50, 51, and 52 of the New Mexico Statutes contain most New Mexico statutes pertaining to private employer-employee relationships, including payment of wages, anti-discrimination laws, unemployment and workers’ compensation.

New Mexico’s Administrative Code includes the administrative rules governing employment issues, which can be found primarily in Titles 9 and 11. 

Who do these cover, including categories of workers?

Depending on the specific provision, these laws generally cover employees. Some provisions, including anti-discrimination laws, apply to applicants for employment.

Misclassification

Are there state-specific rules regarding employee/contractor misclassification?

In general, employers must consult case-law interpretations and regulations regarding the definition of “employ,” “employer,” and “employee.” Under the New Mexico Administrative Code,  “employ” means to “suffer or permit to work” and the terms “employer” and “employee” have the meanings set forth in NMSA §§  50-4-1 and 50-4-21 (NMAC 11.1.4.7). A case applying a common-law definition of independent contractor in the worker’s exclusivity compensation context is Shipman v. MacCo Corp. (1964-NMSC-091, 74 N.M. 174, 392 P. 2d 9). However, there are some areas of law with more specific guidance on classification.

For tax purposes, employers need to correctly classify workers as employees or independent contractors. Sums paid to employees are not subject to the state’s gross receipts tax, but payments for services by an independent contractor may be subject to the state’s gross receipts tax if no exemption applies. The New Mexico Taxation and Revenue Department has issued some online guidance for classifying workers as employees or independent contractors, which states that the state “will accept the determination of the Internal Revenue Service regarding a worker’s status as an independent contractor or employee” (see www.tax.newmexico.gov/Individuals/independent-contractors-vs-employees.aspx).

For unemployment compensation purposes, NMSA § 51-1-42(F)(5) establishes a test to distinguish independent contractors from employees.

For certain employers considered to be contractors in the construction industry, NMSA § 60-13-3.1 provides a test for classifying workers as employees and independent contractors, including criminal and civil penalties. 

For the purposes of assessing liability in civil litigation, New Mexico’s Uniform Jury Instructions provide definitions of both “employer” and “independent contractor”:

• NMUJI 13-403 defines an “employer” as “one who has another perform certain work and who has the right to control the manner in which the details of the work are to be done, even though the right of control may not be exercised”.
• NMUJI 13-404 defines an “independent contractor” as “one who agrees to do certain work where the person who engages the contractor may direct the result to be accomplished but does not have the right to control the manner in which the details of the work are to be performed. One who employs an independent contractor is not liable to others for the wrongful acts or omissions of the contractor or for the wrongful acts or omissions of the employees of the independent contractor”.

Contracts

Must an employment contract be in writing?

New Mexico recognizes oral and implied contracts (Lopez v. Kline, 1998-NMCA-016, 124 NM 539, 953 P.2d 304). Employers may also, through their words or conduct, create a contract with employees (West v. Washington Tru Solutions, LLC, 2010-NMCA-001, 147 NM 424, 224 P.3d 651).

Are any terms implied into employment contracts?

Subject to certain limitations (including for at-will employment contracts and for express provisions addressed by the terms of an integrated, written contract), New Mexico law implies a duty of good faith and fair dealing into all contractual obligations, including employment contracts (Melnick v. State Farm Mut. Auto. Ins. Co., 1988-NMSC-012, 16, 106 N.M. 726, 730, 749 P.2d 1105, 1109; Beaudry v. Farmers Ins. Exch., 2018-NMSC-012, 22, 412 P.3d 1100, 1107).

Are mandatory arbitration agreements enforceable?

“In New Mexico, arbitration is a ‘highly favored’ method of resolving disputes… as a result, when parties have agreed to arbitrate, the courts must compel arbitration” (Piano v. Premier Distrib. Co., 2005-NMCA-018, 5, 137 N.M. 57, 60, 107 P.3d 11, 14).

Subject to important conditions and limitations, the New Mexico Uniform Arbitration Act permits arbitration of employment disputes (NMSA § 44-7A-1 and following).

How can employers make changes to existing employment agreements?

Provided that the employer meets the requirements for a valid contract and/or amendment under state contract law (e.g., including sufficient consideration to support an agreement or amendment), the employer can change an employment agreement expressly, in writing.

Employers can also change or modify an employment agreement (either intentionally or unintentionally) based on verbal (e.g., statements made by managers) or written (e.g., in a handbook) statements and/or course of conduct, under an implied contract theory.

Hiring

Advertising

What are the requirements relating to advertising open positions?

Anti-discrimination requirementsIt is unlawful for an employer to:

Print or circulate or cause to be printed or circulated any statement, advertisement or publication, to use any form of application for employment or membership or to make any inquiry regarding prospective membership or employment that expresses, directly or indirectly, any limitation, specification or discrimination as to race, color, religion, national origin, ancestry, sex, sexual orientation, gender identity, physical or mental handicap or serious medical condition, or, if the employer has fifty or more employees, spousal affiliation, unless based on a bona fide occupational qualification. (NMSA § 28-1-7(D).)

Because New Mexico courts rely on federal law in interpreting New Mexico state law, any federal prohibitions are also likely to be unlawful under New Mexico state law.

Arrest and conviction historyIn addition, effective from June 14, 2019, New Mexico will implement a “ban the box” requirement, limiting employers’ ability to inquire about arrest or conviction history on a written or electronic employment application. However, the new law will permit employers to notify the public or the applicant that an applicant can be disqualified for employment “in particular positions” under the employer’s policy if an applicant has “a certain criminal history” (2019 N.M. Laws Ch. 176, § 2).

Background checks

(a)Criminal records and arrests

Effective as of June 14, 2019, New Mexico will implement a “ban the box” requirement, prohibiting employers from asking about an applicant’s arrest or conviction history on a written or electronic application (2019 N.M. Laws Ch. 176, § 2). The law will permit employers to consider an applicant’s conviction record after review of the application and during discussion with the applicant. The law allows employers to notify the public or the applicant that an applicant can be disqualified for employment with the employer “in particular positions” under the employer’s policy if an applicant has “a certain criminal history”. 

(b)Medical history

Under NMSA § 24-21-4(D), it is unlawful to use genetic information in employment decisions.  

Under NMSA 28-10A-1:

No person may require an individual to disclose the results of a human immunodeficiency virus related test as a condition of hiring, promotion or continued employment, unless the absence of human immunodeficiency virus infection is a bona fide occupational qualification of the job in question. (N.M. Stat. Ann. § 28-10A-1 (LexisNexis, Lexis Advance through Chapter 43 of the 54th Legislature’s 2019 Regular Session).)

Under NMSA § 28-1-7(D), it is unlawful for an employer to:

Print or circulate or cause to be printed or circulated any statement, advertisement or publication, to use any form of application for employment or membership or to make any inquiry regarding prospective membership or employment that expresses, directly or indirectly, any limitation, specification or discrimination as to… physical or mental handicap or serious medical condition. (NMSA § 28-1-7(D).)

A number of important definitions for the state’s disability and medical condition protections are defined in New Mexico regulations (NMAC 9.1.1.7 (R, S, V, X, Z)).

(c)Drug screening

New Mexico has no statute regulating drug testing employees or applicants.   

(d)Credit checks

New Mexico has no credit check law.

(e)Immigration status

New Mexico has no specific law addressing immigration or employment eligibility verification. Both “national origin” and “ancestry” are protected classes under the New Mexico Human Rights Act (NMSA § 28-1-7(A)).

(f)Social media

It is unlawful in New Mexico for an employer to request or require a prospective employee to provide a password to gain access, or to otherwise demand access, to the prospective employee’s account or profile on a social media networking website (NMSA § 50-4-34).

(g)Other

None.

Wage and hour

Pay

What are the main sources of wage and hour laws in your state?

New Mexico’s wage and hour statutes (including minimum wage and overtime requirements) are contained in NMSA § 50-4-1 and following.

What is the minimum hourly wage?

Effective as of January 1, 2020, the state-wide minimum wage will increase from $7.50 per hour to $9 per hour, with incremental increases on January 1 of each following year, up to $12 per hour on January 1, 2023 (2019 N.M. Laws Ch. 114, § 2(A)).

Tipped employeesFor tipped employees who customarily and regularly receive more than $30 a month in tips, employers are permitted to pay these tipped employees at a lower hourly rate, as long as the total received is at least the state-wide minimum wage per hour when the wages and tips are added together. The lower hourly rate payable to tipped employees will also incrementally increase from the rate of $2.13 per hour in 2019 up to $3 per hour by 2023 (2019 N.M. Laws Ch. 114, § 2(D)).

StudentsFrom January 1, 2020, New Mexico law will set a state-wide minimum wage of $8.50 per hour for a student enrolled in secondary school who is working after school hours or when school is not in session, unless the student qualifies as a tipped employee (2019 N.M. Laws Ch. 114, § 2(B)).

Local variationsEmployers should review applicable local ordinances governing minimum wage, as they may require compensation of employees at rates higher than the state-wide minimum wage. Presently, the cities of Santa Fe, Albuquerque, and Las Cruces, as well as the counties of Santa Fe and Bernalillo, have higher minimum wage rates than required by state law. 

What are the rules applicable to final pay and deductions from wages?

Timing of final pay If an employee is discharged by the employer, unpaid wages or compensation of a “fixed and definite amount” and “not based on a task, piece, commission, or other method of calculation” becomes immediately due on demand and must be paid within five days of the discharge (NMSA § 50-4-4(A)). Otherwise, the final paycheck must be issued to a discharged employee within 10 days of the discharge (NMSA § 50-4-4(B)). If not paid within these timeframes, the statutes provide for recoverable damages in a civil action by the employee. If an employee quits or resigns employment, the final payment for wages or compensation must be paid no later than the next succeeding payday (NMSA § 50-4-5). Under NMSA § 50-4-7, if there is a dispute over wages the employer is required to give written notice to the employee of the amount of wages conceded to be due, and to pay such amount unconditionally, within the above-stated timeframes.    

DeductionsNMSA § 50-4-2(B) regulates deductions, providing that employers are required to “pay wages in full, less lawful deductions and less payroll deductions authorized by the employer and employee” and that “wages shall be paid… without any reduction or deduction, except as may be specifically stated in a written contract of hiring entered into at the time of hiring.” New Mexico regulations define a “written authorization” as “a document an employee signs at the time of hiring or prior to making a deduction, giving the employer permission to deduct certain items from the employee’s pay” (see NMAC 11.1.4.7(R)). This regulation also provides that “a written authorization is needed for an employer to deduct an advance or over-payment of wages; however, the employer must pay at least minimum wages times the hours worked to the employee.” 

Hours and overtime

What are the requirements for meal and rest breaks?

New Mexico has no state laws requiring or regulating meal or rest periods.  

What are the maximum hour rules?

NMSA § 50-4-30 provides that no employee be required to work for more than 16 hours in a 24-hour period, with the exception of firefighters, law enforcement officers, employees who are in a standby position or are working in emergency situations, or farm or ranch hands whose duties require them to work longer hours.  

New Mexico also restricts the number of hours that children between the ages of 14 and 16 may work (NMSA § 50-6-3).

How should overtime be calculated?

New Mexico requires that overtime pay be paid to non-exempt employees at one-and-a-half times their regular hourly rate for hours worked in excess of 40 hours per seven-day work week.  

What exemptions are there from overtime?

Exceptions to the general New Mexico statute on overtime can be found both in exclusions from the coverage of the minimum wage statute, as well as exemptions of certain classes of employers from coverage of the overtime statute.

NMSA § 50-4-21 excludes several classes of employees from overtime coverage, including:

• individuals employed in domestic service in or about a private home (who are currently excluded from coverage of the state’s overtime law, NMSA § 50-4-21(C)(1)) – recently enacted legislation removes this exclusion as of June 14, 2019;
• individuals employed in a bona fide executive, administrative, or professional capacity and forepersons, superintendents, and supervisors (NMSA § 50-4-21(C)(2), NMAC 11.1.4.7(F));
• certain volunteers engaged in activities of educational, charitable, religious, or non-profit organizations (NMSA § 50-4-21(C)(4));
• salespersons or employees compensated on piecework, flat-rate schedule, or commission basis (NMSA § 50-4-21(C)(5));
• students regularly enrolled in primary or secondary schools working after school hours or on vacation (NMSA § 50-4-21(C)(6));
• registered apprentices and learners otherwise provided by law (NMSA § 50-4-21(C)(7));
• persons aged 18 or under who are not students in a primary, secondary, vocational, or training school (NMSA § 50-4-21(C)(8));
• persons aged 18 or under who are not graduates of a secondary school (NMSA § 50-4-21(C)(9));
• G.I. Bill trainees while under training (NMSA § 50-4-21(C)(10));
• seasonal employees of an employer holding a valid certificate issued by the Director of the Labor Relations Division of the New Mexico Department of Workforce Solutions (NMSA § 50-4-21(C)(11));
• certain specified employees in the agriculture and horticulture industry (NMSA § 50-4-21(C)(12-13)); and
• employees of charitable, religious, or non-profit organizations who reside on the premises of group homes operated by such charitable, religious, or non-profit organizations for persons who have a mental, emotional, or developmental disability (NMSA § 50-4-21(C)(14)).  

NMSA § 50-4-24 provides for several additional exemptions from overtime, including:

• employers of workers engaged in the ginning of cotton for market, in a place of employment located within a county where cotton is grown in commercial quantities, if each employee is employed for a period of not more than 14 weeks in the aggregate in a calendar year (NMSA § 50-4-24(A));
• employers of workers engaged in agriculture, where “‘agriculture’ has the same meaning used in Section 203 of the federal Fair Labor Standards Act of 1939 [29 USCS § 203]” (NMSA § 50-4-24(B)); and
• overtime worked by an employee of an air carrier providing scheduled passenger air transportation subject to Subchapter II of the Federal Railway Labor Act or the air carrier’s subsidiary that is subject to Subchapter II of the Federal Railway Labor Act, where the overtime is not required by the employer and is arranged through a voluntary agreement of employees to trade scheduled work shifts which meets certain statutory requirements (NMSA § 50-4-24(C)).

Record keeping

What payroll and payment records must be maintained?

Employers are required to maintain accurate records of “hours worked and wages paid to each employee” for at least one year after entry of the record (NMSA § 50-4-9(A)).

In addition, New Mexico regulations require employers to maintain certain records for unemployment compensation purposes (NMAC 11.3.300.309; 11.3.400.401).

Discrimination, harassment and family leave

What is the state law in relation to:Protected categories

(a)Age?

It is unlawful for a New Mexico employer to refuse to hire, discharge, promote, demote, or discriminate in matters of compensation, terms, conditions, or privileges of employment against any person otherwise qualified because of age (NMSA § 28-1-7(A)).

(b)Race?

It is unlawful for a New Mexico employer to refuse to hire, discharge, promote, demote, or discriminate in matters of compensation, terms, conditions, or privileges of employment against any person otherwise qualified because of race (NMSA § 28-1-7(A)).

(c)Disability?

It is unlawful for a New Mexico employer to refuse to hire, discharge, promote, demote, or discriminate in matters of compensation, terms, conditions, or privileges of employment against any person otherwise qualified because of “physical or mental handicap or serious medical condition” (NMSA § 28-1-7(A)). A number of important definitions for the state’s disability and medical condition protections are defined in the New Mexico regulations (NMAC 9.1.1.7 (R, S, V, X, Z)). Employers will want to clearly understand the scope of the definitions of other protected categories of “physical or mental handicap” and “serious medical condition.” Subsequent cases have not completely explored if or how these categories may differ from protected disabilities under federal law, but the courts consider and follow federal law defining a disability for purposes of the state’s antidiscrimination law (Pino v. Galles Chevrolet Co., No. 27,738, 2008 N.M. App. Unpub. LEXIS 54, at *8 (Ct. App. October 20, 2008) (noting that a “temporary injury with minimal residual effects cannot be the basis for a sustainable claim” under either federal or state law)).

In addition, it is unlawful for a New Mexico employer to fail to “accommodate a person’s physical or mental handicap or serious medical condition, unless such accommodation is unreasonable or an undue hardship” (NMSA § 28-1-7(J)).

(d)Gender?

It is unlawful for a New Mexico employer to refuse to hire, discharge, promote, demote, or discriminate in matters of compensation, terms, conditions, or privileges of employment against any person otherwise qualified because of sex (NMSA § 28-1-7(A)). Under New Mexico regulations, discrimination on the basis of “sex” includes harassment, as well as discrimination due to “pregnancy, childbirth, or related medical condition” (NMAC 9.1.1.7(AA)(1, 2)).

Until June 14, 2019, it is unlawful for employers of at least 15 employees to discriminate against an employee because of gender identity. Under the new law, effective as of June 14, 2019, it will be unlawful for an employer of at least four employees to discriminate against an employee because of gender identity.

(e)Sexual orientation?

Until June 14, 2019, it is unlawful for a New Mexico employer of at least 15 employees to refuse to hire, discharge, promote, demote, or discriminate in matters of compensation, terms, conditions, or privileges of employment against any person otherwise qualified because of sexual orientation (NMSA § 28-1-7(A)). Under law, effective as of June 14, 2019, it will be unlawful for an employer of at least four employees to discriminate against an employee because of sexual orientation. 

(f)Religion?

It is unlawful for a New Mexico employer to refuse to hire, discharge, promote, demote, or discriminate in matters of compensation, terms, conditions, or privileges of employment against any person otherwise qualified because of religion (NMSA § 28-1-7(A)).  

(g)Medical?

It is unlawful for a New Mexico employer to refuse to hire, discharge, promote, demote, or discriminate in matters of compensation, terms, conditions, or privileges of employment against any person otherwise qualified because of “physical or mental handicap or serious medical condition” (NMSA § 28-1-7(A)). Several important terms relating to the state’s disability and medical condition protections are defined in New Mexico regulations (NMAC 9.1.1.7(R, S, V, X, Z)). Employers will want to clearly understand the scope of the definitions of other protected categories of “physical or mental handicap” and “serious medical condition.” Subsequent cases have not completely explored if or how these categories may differ from protected disabilities under federal law, but the courts consider and follow federal law defining a disability for purposes of the state’s antidiscrimination law (Pino v. Galles Chevrolet Co., No. 27,738, 2008 N.M. App. Unpub. LEXIS 54, at *8 (Ct. App. October 20, 2008) (noting that a “temporary injury with minimal residual effects cannot be the basis for a sustainable claim” under either federal or state law)).

In addition, it is unlawful for a New Mexico employer to fail to “accommodate a person’s physical or mental handicap or serious medical condition, unless such accommodation is unreasonable or an undue hardship” (NMSA § 28-1-7(J)).

(h)Other?

Additional protected basesAdditional protected bases under New Mexico law are “color,” “national origin,” and “ancestry.” It is unlawful for a New Mexico employer to refuse to hire, discharge, promote, demote, or discriminate in matters of compensation, terms, conditions, or privileges of employment against any person otherwise qualified because of “color,” “national origin,” and/or “ancestry” (NMSA § 28-1-7(A)).

Spousal affiliationIf an employer has at least 50 employees, it is unlawful for a New Mexico employer to refuse to hire, discharge, promote, demote, or discriminate in matters of compensation, terms, conditions, or privileges of employment against any person otherwise qualified because of “spousal affiliation” (NMSA § 28-1-7(A)).

Until June 14, 2019, it is similarly unlawful for employers of at least 15 employees to discriminate against an employee because of sexual orientation or gender identity. Under law, effective as of June 14, 2019, it will be unlawful for an employer of at least four employees to discriminate against an employee because of sexual orientation or gender identity.

Sex discriminationUnder New Mexico regulations, sex discrimination includes discrimination on the basis of “pregnancy, childbirth, or related medical condition” (NMAC 9.1.1.7(AA)(2)). Employers are required to treat such employees “the same as other persons who are temporarily disabled for all employment-related purposes, including receipt of benefits under fringe benefit programs.” Consequently, employers are prohibited from refusing to grant leave to pregnant employees on the same terms as are otherwise offered to employees with other medical conditions.

Health conditions Under the New Mexico Human Rights Act, an employer is prohibited from discriminating against a person otherwise qualified because of “physical or mental handicap or serious medical condition” (NMSA § 28-1-7(A)). Several important terms relating to the state’s disability and medical condition protections are defined in New Mexico regulations (NMAC 9.1.1.7 (R, S, V, X, Z)).

Genetic informationUnder NMSA § 24-21-4(D), it is unlawful to use genetic information in employment decisions. 

Smokers  Under New Mexico Law, it is unlawful for an employer of one or more persons to refuse to hire, or discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions, or privileges of employment because the individual is a smoker or non-smoker, if the individual complies with applicable laws or policies regulating smoking on the premises of the employer during working hours (NMSA § 50-11-3(A) (1)). It is also unlawful for an employer to require an employee to abstain from smoking or using tobacco products during non-working hours, provided that the individual complies with applicable laws or policies regulating smoking on the premises of the employer during working hours (NMSA § 50-11-3(A) (2)). NMSA § 50-11-3(B) provides for some limited exceptions to these general requirements.

As of June 14, 2019, it will be unlawful for an employer to discriminate against an applicant or employee based on conduct allowed by the New Mexico medical marijuana law, subject to several important exceptions.

Harassment

What is the state law in relation to harassment?

New Mexico’s Human Rights Act does not specifically mention or address harassment in the workplace. However, New Mexico courts typically follow federal law (e.g., Title VII) when interpreting claims of workplace harassment (Ulibarri v. State Corr. Acad., 2006-NMSC-009, 139 N.M. 193, 131 P.3d 43 (quid pro quo); Nava v. City of Santa Fe, 2004-NMSC-039, 136 N.M. 647, 103 P.3d 571 (hostile work environment)). New Mexico regulations also explicitly state that discrimination on the basis of “sex” includes sexual harassment (NMAC 9.1.1.7(AA)(1)).

Family and medical leave

What is the state law in relation to family and medical leave?

New Mexico has no general state law requiring private employers to provide family or medical leave. An employer is, however, free to voluntarily implement such policies. If an employer offers sick leave, effective from June 14, 2019, New Mexico law requires employers to permit an employee eligible under a private employer’s policies to use accrued sick leave to care for certain family members (including spouses, domestic partners, or certain other specific family members by blood, marriage, or legal adoption) in the same way that an employee can use accrued sick leave for the employee.

Privacy in the workplace

Privacy and monitoring

What are employees’ rights with regard to privacy and monitoring?

Although New Mexico does not have a statute specifically addressing the monitoring of employees or employee communications, because of the potential for common law tort claims (e.g., invasion of privacy), employers should notify employees in writing (through signage and policies) and obtain prior written acknowledgement and consent before conducting any monitoring. To limit claims of a reasonable expectation of privacy, the consent should expressly state that employees do not have an expectation of privacy in any information or items brought onto the employer’s premises or contained on or accessed through the employer’s computer systems or devices.

Employers should also narrowly tailor any monitoring to meet a clearly articulated legitimate business interest of the employer. The more narrowly tailored the monitoring and the more pertinent the legitimate business interest, the less likely the employer will be found liable for a tort claim related to invasion of privacy.

Employers should also comply with several criminal statutes related to monitoring and surveillance. Under NMSA § 30-9-20, employers should avoid video surveillance in any public or private place where a person “has a reasonable expectation of privacy” so that the “intimate areas” of a person are not viewed or recorded without the person’s knowledge and consent. Under NMSA § 30-12-1, employers should refrain from monitoring telephonic communications without consent of at least one party to the communication.  

Are there state rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?

It is unlawful in New Mexico for an employer to request or require a prospective employee to provide a password to gain access, or to otherwise demand access, to the prospective employee’s account or profile on a social media networking website (NMSA § 50-4-34).

Bring your own device

What is the latest position in relation to bring your own device?

New Mexico law does not address the issue of bringing your own device to work or the use of personal devices at work.

Off-duty

To what extent can employers regulate off-duty conduct?

Under New Mexico Law, it is unlawful for an employer to refuse to hire or  discharge any individual, or to otherwise disadvantage any individual, with respect to compensation, terms, conditions, or privileges of employment because the individual is a smoker or non-smoker, if the individual complies with applicable laws or policies regulating smoking on the premises of the employer during working hours (NMSA § 50-11-3(A) (1)). It is also unlawful for an employer to require an employee to abstain from smoking or using tobacco products during non-working hours, provided that the individual complies with applicable laws or policies regulating smoking on the premises of the employer during working hours (NMSA § 50-11-3(A) (2)). NMSA § 50-11-3(B) provides for some limited exceptions to these general requirements.

As of June 14, 2019, it will be unlawful for an employer to discriminate against an applicant or employee based on conduct allowed by the New Mexico medical marijuana law, subject to several important exceptions.

Gun rights

Are there state rules protecting gun rights in the employment context?

New Mexico has no specific state law preventing employers from adopting policies relating to guns in the workplace.  

Trade secrets and restrictive covenants

Intellectual Property

Who owns IP rights created by employees during the course of their employment?

New Mexico has no statute generally governing ownership of employee creations. There is a statute regulating creations of employees of any private employers who are associated with a statutorily created “technology research collaborative” (NMSA § 21-11-8.6(D)). Also, certain officers, directors, and employees of a statutorily created “research applications center” non-profit organization are required to enter into a non-disclosure agreement which, among other things, must prohibit the director, officer, or employee “from acquiring an intellectual property right” (NMSA § 53-7B-8(B)(4)).

Employers should look to New Mexico common law and applicable federal law, and consider contractual agreements, to address inventions created by employees that may give rise to IP protection. 

Restrictive covenants

What types of restrictive covenants are recognized and enforceable?

In general, restrictive covenants (covenants not to compete and not to solicit employees or customers) are enforceable if reasonable in scope, considering the interests of the parties and the public (Lovelace Clinic v. Murphy, 1966-NMSC-165, 417 P.2d 450, 454).

Reasonableness is determined on a case-by-case basis and requires that the time and geographic restrictions are no greater than necessary to protect the employer’s legitimate interests (Nichols v. Anderson, 1939-NMSC-028, 43 N.M. 296, 299, 92 P.2d 781, 783). A court might decline to enforce an otherwise reasonable agreement based on applicable contract law (e.g., abandonment, waiver, lack of consideration, breach of the agreement by the employer) or for public policy reasons.  

New Mexico law invalidates certain restrictive covenants in the healthcare context (NMSA § 24-1I-1 and following). The Rules of Professional Conduct governing attorneys also prohibit attorneys from entering into agreements that would restrict their right to practice in certain situations (NMRA 16-506).

Non-compete

Are there any special rules on non-competes for particular classes of employee?

Yes. For certain healthcare providers, the state has limited restrictive covenants (NMSA § 24-1I-1 and following). The Rules of Professional Conduct governing attorneys also prohibit attorneys from entering into agreements that would restrict their right to practice in certain situations (NMRA 16-506). 

Labor relations

Right to work

Is the state a “right to work” state?

No. Effective as of June 14, 2019, the state has rejected “right to work” as a matter of state-wide policy, invalidating local “right to work” ordinances. Instead, the state will permit “union security” agreements, which require an employer or a union to require union membership as a condition of employment (2019 N.M. Laws Ch. 81).

Unions and layoffs

Is the state (or a particular area) known to be heavily unionized?

There are some unions that operate in New Mexico. In 2018, 6.8% of the state’s employed workers were members of a union, ranking New Mexico as number 32 out of the 50 states for the percentage of employees who are members in a union, according to data from the Bureau of Labor. 

What rules apply to layoffs? Are there particular rules for plant closures/mass layoffs?

New Mexico has no “mini-WARN” statute.   

Discipline and termination

State procedures

Are there state-specific laws on the procedures employers must follow with regard to discipline and grievance procedures?

In general, New Mexico has no law governing private employers’ use of discipline and grievance procedures. However, employers may, by their conduct or written or oral statements, create an express or implied contract to follow specific procedures about discipline and grievance procedures, including to follow a progressive discipline process.

At-will or notice

At-will status and/or notice period?

New Mexico is an at-will state, meaning that, in the absence of an express contract, an implied contract, or a public policy exception, the employer or employee can terminate the employment relationship at any time with or without notice or cause.

What restrictions apply to the above?

At-will status can be modified by an express or implied contract or can be limited by a public policy exception. An implied contract can be established by reference to an employer’s written materials (e.g., employee handbooks and policies), oral promises, and representations and/or course of conduct.

New Mexico recognizes a number of public policy exceptions to the at-will employment relationship in certain circumstances, including when an employee is terminated because:

• an employee filed a worker’s compensation claim (NMSA § 52-1-28.2);
• an employee seeks occupational disease disablement benefits (NMSA § 52-3-45.2);
• an employee exercises rights under the New Mexico Occupational Safety and Health Act (NMSA § 50-9-25);
• an employee exercises rights afforded by the Dee Johnson Clean Indoor Air Act (NMSA § 24-16-19);
• an employee asserts rights under the state’s wage and hour statute, assists another person with a claim or right under the statute, or informs another person about employment rights or other rights provided by law (NMSA § 50-4-26.1);
• the employee exercises rights protected by the Caregiver Leave Act, 2019, effective as of June 14, 2019 (N.M. Laws Ch. 177, §§ 1-4);
• the employee exercises rights protected by the Safe Harbor for Nurses Act, effective as of June 14, 2019 (2019 N.M. Laws Ch. 52); and
• the employer violated “Clear mandates” of public policy (see Vigil v. Arzola, 1983-NMCA-082, 23, 102 N.M. 682, 688, 699 P.2d 613, 619).

Final paychecks

Are there state-specific rules on when final paychecks are due after termination?

Yes. If an employee is discharged by the employer, unpaid wages or compensation of a “fixed and definite amount” and “not based on a task, piece, commission, or other method of calculation” becomes immediately due on demand and must be paid within five days of the discharge (NMSA § 50-4-4(A)). Otherwise, the final paycheck must be issued to a discharged employee within 10 days of the discharge (NMSA § 50-4-4(B)). If not paid within these timeframes, the statutes provide for recoverable damages in a civil action by the employee. If an employee quits or resigns employment, the final payment for wages or compensation must be paid no later than the next succeeding payday (NMSA § 50-4-5). Under NMSA § 50-4-7, if there is a dispute over wages the employer is required to give written notice to the employee of the amount of wages conceded to be due, and to pay such amount unconditionally, within the above-stated timeframes.