The rights of employees are protected and regulated by state and federal laws. The following summarizes basic employment laws and rights of employees in New Mexico.
Right to Non-Discrimination in Hiring
Any employment advertisements or help wanted ads from any source cannot seek applicants fitting only certain personal characteristics such as race, sex, height and weight, religion, and disability, and employers may not disqualify an applicant for any discriminatory reason.
When interviewing job applicants, employers may not ask questions regarding race, national origin, religion, age, sexual orientation, marital status, organizations, children, or arrests. A disabled person may be asked if he or she requires an accommodation to perform the job if there is a bona fide occupational qualification.
Minimum Wage and Overtime Regulations
Federal minimum wage and overtime laws are regulated under the federal Fair Labor Standards Act (FLSA), though states and some localities are free to provide their own, more generous benefits. New Mexico’s minimum wage is $7.50, just above the federal rate of $7.25. A training wage of $4.25 per hour can be paid to teenagers for the first 90 days and to student learners.
Tipped employees may be paid at a rate of $2.13 per hour, but must still earn at least $7.50 per hour or the minimum wage for each hour worked counting tips. Eligible employees get overtime at 1.5 times the regular applicable minimum wage if they work over 40 hours per week.
Employees who are exempt from the state's minimum and overtime laws include farm workers; bona fide executives, administrative and professional employees; outside salespersons who earn more than half their pay from commissions, and seasonal and recreational workers
Safety in the Workplace
State and federal laws require a safe and hazard-free work area for all employees. Employees may report safety violations anonymously and are entitled to protection from retaliation by their employers.
Workers' Compensation Laws
New Mexico's system of workers' compensation requires all employers with three or more employees, or at least one if a construction company, to have workers’ compensation coverage. This is a no-fault system for workers injured on the job or who contract an occupational disease or illness. The system provides weekly wage-loss compensation, payment of medical bills and prescriptions, vocational rehabilitation, disability payments, and death benefits to the surviving spouse and children. Statutory guidelines provide the amount of benefits to be paid.
Those not covered include agricultural workers, executive employees of corporations or LLCs, and private domestic servants and real estate salespersons.
Leave and Time Off
Family and medical leave: The federal Family Medical and Leave Act (FMLA) permits employees in companies with at least 50 employees and all public and state employees who have worked at least 1,250 hours in the past year to take up to 12 weeks of unpaid leave to care for a family member, a newborn, or a newly adopted child. Eligible employees may also take FMLA leave if they have a serious medical condition and up to 26 months to care for a military family member.
New Mexico has no comparable state medical leave law for smaller companies.
Leave to vote: If requested in advance, workers are entitled to time off to vote on Election Day, but the amount of time is determined by their employer.
Harassment in the Workplace
No employee may be subjected to any form of harassment under state and federal laws. This includes making sexually explicit comments, innuendoes, lewd jokes, displaying sexual photos, drawings, or sending offensive email that creates a hostile working environment. Employees and supervisors may not engage in conduct that threatens or intimidates another employee, conditions a benefit on a sexual or intimate act, or which is unwanted physical contact of any kind.
Harassment usually means sexual conduct, but it also refers to any offensive gesture, comment, or any other activity that is directed at workers based on their religion, national origin, gender, race, or disability. The conduct must be frequent or pervasive as well.
An employee who has been disciplined, discharged, demoted, or who voluntarily resigns based on a hostile working environment may have a claim for harassment against the employer.
Legal and Unlawful Termination
At-Will Contract: Employers and employees may end their employment relationship at any time with or without a reason if not working under a contract. But a discharge may not be in violation of public policy or if there is an implied contract of employment limiting termination to “for cause.” Otherwise, an employee can only be fired for reasons stated in a contract.
Wrongful firing: Employers cannot fire someone for a discriminatory reason; if the person was the target of harassment; or in retaliation for the employee having filed a complaint against the employer. Other prohibited reasons for termination include pregnancy, age, work-related injuries, or illness.
Vacation pay: There are no federal laws regarding vacation pay and New Mexico has no law requiring employers to pay for unused vacation time unless it has an established company policy or employment contract permitting it.
Unemployment Benefits and COBRA
Unemployment compensation: Residents or in-state workers must have been discharged through no fault of their own, must not be disabled, be actively seeking work, filing ongoing claims, and not refuse work unless for a good reason.
COBRA laws: Federal law requires employers with at least 20 full-time employees to allow discharged workers the right to continue group health benefits for up to 18 months and up to 36 months if there is a “qualifying event.” New Mexico has a mini-COBRA law covering employers with less than 20 full-time employees for up to 36 months for a spouse and dependent child if there is a death and up to 18 months for the employee. The state has no comparable or mini-COBRA law covering companies with fewer than 20 employees.
Consult an Employment Attorney
This is only an introduction to employee rights. Employment laws are more complex than presented here, so consult a New Mexico employment lawyer if you have concerns regarding employment laws that affect you.
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