Employment Law in New Mexico

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Pre-employment/Promotion

Hiring

Under federal law, an employer doesn't have to hire, or promote, the most qualified applicant. But the employer cannot base decisions on personal characteristics that are not job-related. These characteristics often include:

• Age
• Race
• Sex
• Religion
• National origin
• Disability

An interviewer isn't allowed to ask questions relating to these characteristics. Interview questions that aren't allowed include:

• Are you married? Are you planning to get married?
• Do you have children? Are you planning to have children?
• Where were you born?
• What's your sexual orientation?
• Have you ever been arrested?

An interviewer can, however, ask about a personal characteristic if it could hinder your ability to fulfill the job's requirements. Some examples might be:

• Have you ever been convicted of a crime?
• Can you prove that you are eligible to work in the US?
• Can you do this job with, or without, reasonable accommodations?

References

A previous employer is free to provide any non-confidential information about a previous employee, as long as it's true and isn't provided to maliciously harm the employee. An employer, who provides false information that disparages the employee, may be liable for defamation. In order to avoid potential liability, many employers often refuse to comment on a past employee's job performance and confirm only dates of hire and separation, plus wage or salary information.

Employment

At Will

In the majority of states, employees not working under an employment contract are deemed to be "at will." At-will employees may be terminated for any reason, so long as it's not illegal. Similarly, an employee is free to leave his or her job at any time for any reason.

The general rule in New Mexico is that an employment contract is for an indefinite period and is terminable at the will of either party unless there is an express contractual provision that states something different. There are two recognized exceptions in New Mexico to the employment at will rule:

• Discharge in violation of public policy
• Implied contract of employment, which limits discharge to "for cause" or pursuant to a particular set of procedures

Employee Handbooks

While an employer is not required by law to have an employee handbook, in most cases, it is recommended. An employee handbook provides a centralized, complete and certain record of the employer's policies and procedures. An employee handbook also provides more convenient access by employees and managers.

At a minimum, an employee handbook should include:

• A statement regarding the at-will employment relationship
• An equal employment opportunity statement
• A policy regarding sexual and other types of harassment in the workplace
• Internet access, e-mail, and voice mail policies
• The Family Medical Leave Act

The laws regarding an employer's duties and responsibilities arising under an employee handbook are complex, and a licensed attorney should be contacted to review individual circumstances.

Workplace Safety

Federal and state laws require that most employers furnish a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. In most instances, an employee may anonymously complain about an unsafe work environment and be protected against employer reprisals.

The New Mexico Occupational Health and Safety Act assures job health and safety protection for New Mexico workers by promoting safe and healthful working conditions throughout the state. The New Mexico Environment Department is responsible for administering the Act and for enforcing compliance with regulations promulgated by the Environmental Improvement Board under the Act. The New Mexico Occupational Health and Safety Bureau (NMOHSB) is a state regulatory agency that is part of the New Mexico Environment Department. It has the responsibility of enforcing Occupational Health and Safety Regulations within New Mexico.

Workplace Injury

Workers' compensation laws are designed to compensate employees who have been injured or killed in work related accidents according to a fixed monetary scheme, without having to resort to litigation. Dependents of a fatally injured employee may also be entitled to benefits. Employers may be protected by limits placed on the amount of an employee's recovery.

In New Mexico, workers' compensation insurance pays 66 2/3% of your average weekly wages, which is called Temporary Total Disability (TTD) Benefits. TTD benefits stop either when your doctor releases you to full work duty or when you reach Maximum Medical Improvement (MMI), which is when your doctor feels that you are as good as you are going to get from medical treatment. You may be eligible for Permanent Partial Disability (PPD) if your doctor finds that you have some remaining disability after you reach MMI.

Sexual Harassment

An employer may be liable to an employee for instances of "sexual harassment," which can include unwelcome sexual advances, conduct or other physical or verbal acts of a sexual nature, which occur in the workplace. The following conduct is generally considered sexual harassment:

• Direct sexual conduct - an employer makes sexual advances or statements
• "Quid pro quo" - job-related benefits are offered in exchange for sexual conduct
• Hostile work environment - an employer maintains an overly sexual work environment

Because the laws determining what conduct, or pattern of conduct, constitutes actionable sexual harassment are complex, a licensed attorney should be contacted to review individual circumstances.

Workplace Safety

Discrimination and Wrongful Termination

Employers are not allowed to terminate or discriminate against employees for the following reasons:

• Age
• Race
• Sex
• Religion
• National origin
• Disability
• Pregnancy

It's illegal for an employer to consider these characteristics with regard to:

• Promotions
• Job assignments
• Termination
• Wages

And it's illegal for an employer to terminate an employee:

• For refusing to break a law
• In retaliation for filing a discrimination or safety claim
• For taking leave under the Family and Medical Leave Act
• Without following its own stated procedure or policy
• For reasons not contained in the employment contract, if one exists

Family and Medical Leave

The Family Medical Leave Act (FMLA) provides 12 weeks of unpaid leave to qualifying employees who need time off from work to care for their own or an immediate family member's serious health condition. This allows for continued medical benefits and restoration of their original position upon return. An employee is eligible when they:

• Have worked for the same employer for the previous 12 months
• Have worked at least 1,250 hours in the previous 12 months
• Are employed by a "covered" employer, which is:
  • All federal, state, and local governments and agencies
  • Private employers with 50 or more employees for 20 weeks in the calendar year and engaged in interstate commerce

An injury or illness qualifies as a "serious health condition" if it either requires an overnight stay in a medical facility or constitutes "continuing treatment" by a health-care provider. Continuing treatment requires either the employee's incapacity for more than three calendar days and at least two subsequent treatments, or treatment by a health-care provider that results in continuing supervised treatment. H4>Post-employment

Unemployment Benefits

Unemployment benefits are based on combinations of federal and state statutes. Unemployment compensation programs are administered by the state and normally provide temporary monetary compensation to workers who have been terminated without cause, through no fault of their own. Employees who voluntarily terminate their employment for "good cause" may also be entitled to benefits.

To be eligible for unemployment benefits in New Mexico, you must be out of work through no fault of your own and you must have earned the minimum wages required in at least one quarter and at least $1 of wages in another quarter of the base period. Your base period is the first four of the last five completed calendar quarters. You also must be able, available and actively seeking work in order to be eligible for benefits. The maximum amount payable is 26 times your weekly benefit amount, depending on the total amount of wages earned.

COBRA

Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), which is a federal law, employees may be allowed to continue their health insurance benefits, at the employee's expense, for up to 18 months after either voluntary or involuntary termination, if the employer has 20 or more employees.

To qualify for COBRA continuation coverage, an employee must have a qualifying event that causes the employee to lose group health coverage. The following are qualifying events:

For employees
• Voluntary or involuntary termination of employment for reasons other than gross misconduct
• Reduction in numbers of hours worked
For spouses
• Loss of coverage by the employee because of one of the qualifying events listed above
• Covered employee becomes eligible for Medicare
• Divorce or legal separation of the covered employee
• Death of the covered employee
For dependent children
• Loss of coverage because of any of the qualifying events listed for spouses
• Loss of status as a dependent child under the plan rules

New Mexico has enacted a "mini" COBRA law similar to the federal COBRA law. It provides that health insurance plans with 2-19 employees can qualify for six months of continuation coverage if you have been continuously covered under an Alliance plan as an active employee for at least six months and you apply for continuation coverage within 31 days of the loss of your eligibility for group coverage.

Related Web Links:

- New Mexico Occupational Health & Safety Bureau
- State of New Mexico Workers' Compensation Administration 
- New Mexico Department of Labor Employment Security Division
- US Department of Labor
- US Department of Labor OSHA
- Employment Law for Employees message boards for more help