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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 went into effect on July 1, 2022.

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, as 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 threaten or otherwise coerce the employee because the employee receives a summons for jury service, responds to the summons, serves as a juror, or attends court for prospective jury service. In addition, 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, employees may leave work for two hours for the purpose of voting between the time of opening and the time of closing the polls. The voter shall not be liable for any penalty for such absence; however, the employer may specify the hours during this period in which the voter may be absent. N.M. Stat. § 1-12-42.

Parental Leave

It is an unlawful discriminatory practice for any employer to require an employee with a need arising from pregnancy, childbirth, or a condition related to pregnancy or childbirth to take paid or unpaid leave if another reasonable accommodation can be provided, unless the employee voluntarily requests to be placed on leave or the employee is placed on leave pursuant to federal law. It is also unlawful for any employer to refuse or fail to make reasonable accommodations for an employee or job applicant with a need arising from pregnancy, childbirth, or a condition related to pregnancy or childbirth. N.M. Stat. § 28-1-7.

Caregiver 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.

Sick Leave

For every 30 hours worked, employees accrue a minimum of one hour of earned sick leave. Employers may choose a higher accrual rate or elect to grant employees the full 64 hours of earned sick leave for the upcoming year on January 1 of each year or, for employees whose employment begins after January 1 of a given year, a pro rata portion of the 64 hours for use in the remainder of that year. Such employees shall not be entitled to use more than 64 hours of earned sick leave per 12-month period, unless the employer selects a higher limit. N.M. Stat. § 50-17-3.

Domestic Abuse Leave

The State of New Mexico requires employers to grant an employee domestic abuse leave without interfering with, restraining or denying exercise of rights under the Promoting Financial Independence for Victims of Domestic Abuse Act or attempting to do so. Retaliation against an employee for using domestic abuse leave is prohibited. N.M. Stat. § 50-4A-3.

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.

It is also unlawful for an employer to refuse to hire or to 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 nonsmoker, provided that the individual complies with applicable laws or policies regulating smoking on the premises of the employer during working 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, 2022, and before January 1, 2023, the State of New Mexico set minimum wage at not less than $11.50 per hour. The minimum wage in New Mexico will increase to $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 $2.80 per hour. N.M. Stat. § 50-4-22.

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 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.

The State of New Mexico requires every employer to keep a true and accurate record of hours worked and wages paid to each employee. The employer shall keep such records on file for at least one year after the entry of the record. N.M. Stat. § 50-4-9.

Final Payments

The State of New Mexico requires an employer to issue a final paycheck on 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. When 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 temporary income to individuals who have lost work through no fault of their own. An unemployed individual shall be eligible to receive benefits only if it is determined that the individual is able to perform, available for, and actively seeking work. Unemployment insurance benefits are financed through employer payroll taxes; 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 as 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 40 hours 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. During the calendared school year, children between the ages of 14–16 may not work before 7:00 a.m., after 7:00 p.m., during school hours (except for work experience and career exploration programs), not more than three hours per school day nor more than 18 hours per week during school weeks. Id.

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 that 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 Immunodeficiency Virus Test

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 on the job in question. N.M. Stat. § 28-10A-1.

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, promote or demote, or discriminate in matters of compensation, terms, conditions, or privileges of employment against any person otherwise qualified because of race, age, religion, color, ancestry, 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, spousal affiliation. N.M. Stat. § 28-1-7. This generally applies to employers with four or more employees. For discrimination based on spousal affiliation, the requirement is 50 or more employees.

References

When requested to provide a reference for 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. N.M. Stat. § 26-2B-9.

Social Media

It is unlawful for an employer to request or require a prospective employee to provide a password to gain access to the prospective employee's account or profile on a social networking website or to demand access in any manner to a prospective employee's account or profile on a social networking website. N.M. Stat. § 50-4-34.

Ban the Box

Employers may not inquire about a job applicant's criminal history or conviction on a job application. N.M. Stat. § 28-2-3.1. An employer may consider an applicant's conviction after review of the application and in discussion with the applicant. Id. The employer may notify the public or an application that the law or the employer's policy would disqualify an applicant with a certain criminal record from particular job positions. Id.

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Guide last updated October 2022.

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