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Quick and Easy Guide to Labor & Employment Law: New Mexico

This state-specific guide covers labor and employment case law, statutes, rules, and regulations that HR professionals and clients often encounter or have questions about in New Mexico.

All laws from the legislative session go into effect on July 1, 2021.

At-Will Employment

The general rule in New Mexico is that employers and employees may terminate the employment relationship for any reason and at any time, as long as the reason is not otherwise unlawful. This remains true even where there is an employment contract, so long as the contract is for an indefinite period, unless the contract is supported by consideration beyond the performance duties and payment of wages or there is an express contractual provision stating otherwise. Melnick v. State Farm Mut. Auto. Ins. Co., 106 N.M. 726, 749 P.2d 1105 (N.M. 1988).

New Mexico courts have recognized two exceptions to the general rule of at-will employment: wrongful discharge in violation of public policy (retaliatory discharge) and an implied contract term that restricts the employer's power to discharge. Id.

Right to Work Laws

New Mexico is not a right to work state. Union membership may therefore be a condition of employment. 

Immigration Verification

New Mexico places no additional employment verification procedures on employers beyond Federal I-9 compliance. There is no requirement to use E-Verify under New Mexico state laws.

Drug Testing

New Mexico does not have a drug testing statute generally regulating employer drug testing of employees or applicants. However, employees are protected by the medical marijuana legislation, which prohibits employers taking adverse action against employees based on conduct allowed under the medical marijuana law unless the medical marijuana user is impaired at work or the position is safety sensitive.  

Jury Duty Leave

It is unlawful for an employer to deprive an employee of employment or to threaten or otherwise coerce the employee because the employee receives a summons for jury service, responded to the summons, serves as a juror or attends court for prospective jury service. Additionally, it is unlawful for an employer to require or request an employee to use annual, vacation or sick leave for time spent responding to a summons for jury duty. No New Mexico state law requires the employer to pay wages while an employee is on jury duty. N. M. Stat. § 38-5-18.

Voting Leave

On election days, each employer in the state may specify the work hours of employees so that each employee will have an opportunity "to exercise the right of franchise," which is the right to vote. The voter shall not be liable for any penalty for such absence. N.M. Stat. § 1-12-42.

Parental Leave

New Mexico has a Caregiver Leave Act. N.M. Stat. § 50-16-1.

An employer that provides eligible employees with sick leave for an eligible employee's own illness or injury or to receive health care shall permit its eligible employees to use accrued sick leave to care for their family members in accordance with the same terms and procedures that the employer imposes for any other use of sick leave by eligible employees. N.M. Stat. § 50-16-3.

The Caregiver Leave Act is separate from the FMLA, which allows eligible employees to take unpaid leave for certain reasons.

Smoking Laws

It is unlawful for an employer to require as a condition of employment that any employee or applicant for employment abstain from using tobacco products during nonworking hours, provided the individual complies with applicable laws or policies regulating smoking on the premises of the employer during work hours. N.M. Stat 50-11-3.

Break Time to Express Milk

To foster the ability of a nursing mother who is an employee to use a breast pump in the workplace, an employer shall provide a space for using the breast pump that is clean and private. It must be near the employee's workspace and not a bathroom. The employer shall also provide flexible break times to express milk. N.M. Stat. § 28-20-2.

Meal Breaks

The State of New Mexico has no law regulating meal breaks or rest periods.

Minimum Wage, Overtime and Wage Recordkeeping

Beginning, January 1, 2021 and prior to January 1, 2022, the State of New Mexico set minimum wage at not less than $10.50 per hour. The minimum wage in New Mexico will increase to $11.50 per hour in 2022 and $12.00 per hour in 2023. Employers must still comply with federal wage laws and regulations. The employer can pay employees who are tipped more than $30.00 a month at a rate at least $2.55 per hour. N.M. Stat. § 50-4-22.

Every employer subject to the Minimum Wage Act shall keep a summary of it, furnished by the labor commissioner [director of the labor and industrial division] without charge, posted in a conspicuous place on or about the premises wherein any person subject to the Minimum Wage Act is employed, and the summary shall clearly and conspicuously set forth the current minimum wage. N.M. Stat. § 50-4-25.

An employee shall not be required to work more than 40 hours in any week of seven days, unless the employee is paid one and one-half times the employee's regular hourly rate of pay for all hours worked in excess of 40 hours. For an employee who is paid a fixed salary for fluctuating hours and who is employed by an employer a majority of whose business in New Mexico consists of providing investigative services to the federal government, the hourly rate may be calculated in accordance with the provisions of the federal Fair Labor Standards Act of 1938 and the regulations pursuant to that act; provided that in no case shall the hourly rate be less than the federal minimum wage.

Final Payments

The State of New Mexico requires an employer to issue a final paycheck the succeeding payday to an employee without a written employment contract for a definite period who quits or resigns. N.M. Stat. § 50-4-5. Where the employee is discharged, unpaid wages become due immediately and must be paid no later than five days after discharge. N.M. Stat. § 50-4-4

Unemployment Insurance

Unemployment insurance benefits provide income to individuals who have lost work through no fault of their own. The benefits are intended to partially offset the loss of wages while an unemployed worker searches for suitable work or until an employer can recall the employee to work. Nothing is deducted from the employee's wages to pay for this coverage. Unemployment benefits are administered by the New Mexico Department of Workforce Solutions. Additional information regarding the benefits may be accessed at www.dws.state.nm.us/en-us/Unemployment.

Workers' Compensation

Every employer except as provided in N.M. Stat. § 52-1-6, shall become liable to and shall pay to any such worker injured by accident arising out of and in the course of his employment and, in case of his death being occasioned thereby, to such person as may be authorized by the director or appointed by a court to receive the same for the benefit of his dependents. Compensation shall be in the manner and amount at the times required in the Workers' Compensation Act. N.M. Stat. § 52-1-2.

Child Labor

No child under 14 years of age shall be employed or permitted to labor at any gainful occupation unless otherwise provided for in the Child Labor Act. N.M. Stat. § 50-6-1.

A child over the age of 14 years and under the age of 16 years shall not be employed or permitted to labor at any gainful occupation without procuring and filing a work permit otherwise provided for in the Child Labor Act. N.M. Stat. § 50-6-2.

Children over the age of 14 and under the age of 16 years shall not be employed or permitted to labor at any gainful occupation for more than 40hours in any one week nor more than eight hours in any one day when school is not in session unless otherwise provided for in the Child Labor Act. N.M. Stat. § 50-6-3.

Gun Laws

New Mexico does not currently have laws restricting the right of employers to prohibit employees from carrying guns at work or possessing guns in employee vehicles on employer property.

Additional Laws and Regulations

Equal pay

The Fair Pay for Women Act prohibits employers from discriminating on the basis of sex by paying wages to employees in the establishment at a rate less than the rate that the employer pays wages to employees of the opposite sex in the establishment for equal work on jobs which require equal skill, effort and responsibility and that are performed under similar working conditions, except where the payment is made pursuant to a: (1) seniority system, (2) merit system (3) or system that measures earnings by quantity or quality of production. N.M. Stat. § 28-23-3.

Human Rights

It is an unlawful discriminatory practice for: an employer, unless based on a bona fide occupational qualification or other statutory prohibition, to refuse to hire, 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, sex, sexual orientation, gender identity, pregnancy, childbirth or condition related to pregnancy or childbirth, physical or mental handicap or serious medical condition, or if the employer has 50 or more employees, or spousal affiliation. N.M. Stat. § 28-1-7.

References

When requested to provide a reference on a former or current employee, an employer acting in good faith is immune from liability for comments about the former employee's job performance. The immunity shall not apply when the reference information supplied was knowingly false or deliberately misleading, was rendered with malicious purpose or violated any civil rights of the former employee. N.M. Stat. § 50-12-1.

Medical Marijuana

New Mexico's Compassionate Use Act (CUA) authorizes the use of medical marijuana; employers are generally restricted from taking adverse action against employees as a result of their use of medical marijuana in according with the CUA, as noted above under the Drug Testing section.

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Guide last updated July 2021.

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