Labor and Employment Law Overview: New Mexico

This item is part of Labor and Employment Law Overview: Federal

Author: XpertHR Editorial Team

Summary

  • New Mexico law prohibits an employer from discriminating and retaliating against employees in a variety of protected classes. See EEO, Diversity and Employee Relations.
  • New Mexico has some laws related to preemployment screening and background checks. See Recruiting and Hiring.
  • In New Mexico, there are requirements relating to the minimum wage, breastfeeding breaks and child labor. See Wage and Hour.
  • New Mexico has a number of laws that relate to employee pay and benefits, including health care continuation, paydays, pay statements and wage deductions. See Pay and Benefits.
  • Under New Mexico law, employees are entitled to a number of leaves, including military leave, voting leave, domestic abuse leave, emergency responder leave and time off for jury duty. See Attendance and Leave.
  • New Mexico has a few safety regulations that differ from federal law. New Mexico also prohibits smoking in indoor workplaces. See Health and Safety.
  • The timing of a final paycheck depends on whether an employee quit or was fired. See Organizational Exit.

Introduction to Employment Law in New Mexico

New Mexico is considered to be both an employee- and employer-friendly state.

Select New Mexico employment requirements are summarized below to help an employer understand the range of employment laws affecting the employer-employee relationship in the state. An employer must comply with both federal and state law.

An employer must also comply with applicable municipal law obligations affecting the employment relationship, in addition to complying with state and federal requirements.

EEO, Diversity and Employee Relations

Key New Mexico requirements impacting EEO, diversity and employee relations are:

New Mexico Human Rights Act

  • Race;
  • Color;
  • Ancestry;
  • National origin;
  • Religion;
  • Physical or mental handicap or serious medical condition;
  • Sex (including pregnancy, childbirth and related medical conditions); and
  • Age.

In addition, if an employer has 15 or more employees, the NMHRA prohibits discrimination based on sexual orientation and gender identity. If an employer has 50 or more employees, discrimination based on spousal affiliation is prohibited.

Harassment on the basis of these factors is also a form of discrimination prohibited under the NMHRA.

Absent undue hardship, New Mexico employers must also reasonably accommodate an employee's physical or mental handicap or serious medical condition.

In addition, the NMHRA prohibits retaliation against an employee who opposes unlawful discrimination or who files a complaint, testifies or participates in any proceeding under the act.

Other Laws Prohibiting Discrimination

A New Mexico employer must comply with several other laws that prohibit discrimination on a variety of bases, including:

  • National Guard or State Defense Force Membership;
  • HIV status;
  • Service as a juror;
  • Political opinions or beliefs;
  • Genetic information;
  • Registration as a qualified medical marijuana user; and
  • Use of a qualified service animal.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on EEO, diversity and employee relations practices in New Mexico can be found in the New Mexico Supplement: Table of Contents, Disabilities (ADA): New Mexico, EEO - Discrimination: New Mexico, EEO - Harassment: New Mexico, EEO - Retaliation: New Mexico, New Mexico Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in New Mexico? Federal requirements can be found in Disabilities (ADA): Federal, EEO - Discrimination: Federal, EEO - Harassment: Federal and EEO - Retaliation: Federal.

Recruiting and Hiring

New Mexico has some laws related to how an employer can screen applicants for employment such as:

  • Mandatory background checks for certain jobs such as school personnel, caregivers and childcare workers;
  • Requirements prohibiting an employer from using genetic testing or information in employment or recruiting decisions;
  • Prohibitions against requiring an HIV test or the disclosure of results from a previous HIV test as a condition of hiring, promotion or continued employment; and
  • Prohibitions against requesting or requiring a prospective employee to provide a password or access to the prospective employee's account or profile on a social networking website.

Additional information on recruiting and hiring practices in New Mexico can be found in Preemployment Screening and Testing: New Mexico, Employee Privacy: New Mexico and Does This Law Apply to My Organization in New Mexico? Federal requirements can be found in Preemployment Screening and Testing: Federal and Employee Privacy: Federal.

Wage and Hour

Key New Mexico requirements impacting wages and hours are:

Minimum Wage

New Mexico's minimum wage is higher than the federal minimum wage. Currently, the state minimum wage is $7.50 per hour, with certain exceptions. New Mexico also establishes minimum requirements for employees who are not paid strictly on an hourly basis.

Breastfeeding Breaks

A New Mexico employer must provide flexible break time to allow a nursing mother to pump breast milk at work. If an employer provides paid breaks to employees, the employee may elect to express milk during her regularly scheduled breaks. If the break time cannot run concurrently with any paid breaks already provided to the employee, then the break time will be unpaid and will not be counted when determining whether an employee has worked overtime hours.

An employer must also provide a space for using a breast pump that is:

  • Near the employee's work area;
  • Clean and private; and
  • Not a bathroom.

Employers may not discriminate against or discipline an employee for taking advantage of her right to breastfeed or express breast milk at work.

Child Labor

Child labor laws in New Mexico restrict the occupations in which minors may be employed and the number of hours and times during which they may work.

All minors are prohibited from working in certain workplaces, including:

  • Any underground mine or quarry; and
  • Any place where explosives are used.

Minors who are under 16 years of age are prohibited from working in additional occupations, including:

  • Manufacture of goods for immoral purposes;
  • Work in any establishment where malt or alcoholic beverages are manufactured, packed, wrapped or bottled;
  • Soliciting door-to-door for other than a nonprofit organization or activities approved by the parent; and
  • Any employment dangerous to lives and limbs, or injurious to the health or morals of children under the age of 16.

Minors who are 14 to 15 years of age may not work:

  • Before 7:00 a.m. or after 7:00 p.m. during the calendar school year;
  • Before 7:00 a.m. or after 9:00 p.m. outside the calendar school year;
  • More than three hours per day on school days;
  • More than eight hours per day when school is not in session;
  • More than 18 hours a week during school weeks; and
  • More than 40 hours a week during nonschool weeks.

Minors employed in the performing arts generally may not work:

  • Before 5:00 a.m.;
  • After 10:00 p.m. on evenings preceding school days or after 12:00 a.m. on mornings of nonschool days;
  • More than six hours a day for performers under the age of six;
  • More than eight hours a day for performers ages six to nine;
  • More than nine hours a day for performers ages nine to 16;
  • More than 10 hours a day for performers ages 16 to 18; and
  • During school days unless the employer provides a teacher with credentials appropriate to the level of education needed.

New Mexico requires most working minors under 16 years of age to obtain a work permit.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on wage and hour practices in New Mexico can be found in the New Mexico Supplement: Table of Contents, Minimum Wage: New Mexico, Hours Worked: New Mexico, Child Labor: New Mexico, New Mexico Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in New Mexico? Federal requirements can be found in Minimum Wage: Federal, Hours Worked: Federal and Child Labor: Federal.

Pay and Benefits

Key New Mexico requirements impacting pay and benefits are:

Health Care Continuation

Under New Mexico law, an employer must offer continuation of heath care coverage for up to six months to an employee and his or her covered dependents who lose coverage due to termination of employment. After six months, a conversion policy must be offered.

A New Mexico employer also must provide continued coverage through a converted or separate policy to an employee's covered dependents upon the death of the employee or upon the divorce or legal separation of the spouse from the employee. When a spouse elects continuation or conversion coverage in his or her own name, the spouse may also elect such coverage for dependent children.

Paydays

New Mexico law requires an employer to pay nonexempt employee wages at least semimonthly, on regular designated paydays that are no more than 16 days apart. Wages earned from the 1st to the 15th of the month are due by the 25th of the month; wages earned from the 16th to the last day of the month must be paid by the 10th of the next calendar month.

However, if the payroll is prepared and paychecks are issued outside of New Mexico, employees must be paid by the last day of the month for wages earned from the 1st to the 15th of the month, and by the 15th of the following calendar month for wages earned from the 16th of the month to the last day of the month.

Pay Statements

New Mexico employers are required to provide employees with a written record of certain pay-related information, including:

  • The identity of the employer;
  • The number of hours worked;
  • Gross pay;
  • Itemized deductions; and
  • Total wages and benefits earned by the employee.

Wage Deductions

Other than for required federal or state taxes (including Social Security and Medicare (FICA)), New Mexico law prohibits an employer from making deductions from an employee's wages without written authorization from the employee or a court order.

Any deductions made by the employer may not bring an employee's wages below the minimum wage.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on pay and benefits practices in New Mexico can be found in Health Care Continuation (COBRA): New Mexico, Payment of Wages: New Mexico and Does This Law Apply to My Organization in New Mexico? Federal requirements can be found in Health Care Continuation (COBRA): Federal and Payment of Wages: Federal.

Attendance and Leave

New Mexico has several laws relating to required leaves for employees, which cover all employers. These laws include:

  • Military leave;
  • Jury duty leave;
  • Voting leave;
  • Domestic abuse victims leave; and
  • Volunteer emergency responder leave.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on attendance and leave practices in New Mexico can be found in the New Mexico Supplement: Table of Contents, Jury Duty: New Mexico, Other Leaves: New Mexico and USERRA: New Mexico. Federal requirements can be found in Jury Duty: Federal, Other Leaves: Federal and USERRA: Federal.

Health and Safety

Key New Mexico requirements impacting health and safety are:

Occupational Health and Safety Act

Most New Mexico employers must comply with the state's Occupational Health and Safety Act, which adheres to federal OSHA regulations with minimal differences. Although New Mexico law does not have many regulations that differ from the federal plan, there are a few, including regulations for:

  • Convenience stores;
  • Field sanitation; and
  • Short-handled hoes.

A New Mexico employer has the same reporting requirements as under federal OSHA, but fatalities or catastrophes should be reported to the New Mexico Occupational Health and Safety Bureau instead of to OSHA.

Dee Johnson Clean Indoor Air Act

With limited exceptions, New Mexico's Dee Johnson Clean Indoor Air Act prohibits smoking in any enclosed indoor workplace, including in:

  • Offices;
  • Employee cafeterias, lunchrooms, break rooms and lounges;
  • Restrooms;
  • Hallways, stairways and elevators; and
  • Lobbies and reception areas.

An employer may provide a designated outdoor smoking area as long as it extends a reasonable distance from any entrances, windows and ventilation systems.

A New Mexico employer must also adopt, implement, post and maintain a written smoking policy and post "No Smoking" and "Smoking Permitted" signs at each public entrance to the workplace, as applicable.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on health and safety requirements in New Mexico can be found in the New Mexico Supplement: Table of Contents, Employee Health: New Mexico, HR and Workplace Safety: New Mexico, New Mexico Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in New Mexico? Federal requirements can be found in Employee Health: Federal and HR and Workplace Safety (OSHA Compliance): Federal.

Organizational Exit

Upon involuntary termination, New Mexico law provides that an employee must be paid within five days of termination if his or her wages are a fixed and definite amount and not based on task, piece, commission or other basis. All other involuntarily terminated employees must be paid within 10 days of termination.

If an employee quits or voluntarily resigns, he or she must be paid on or before the next regular payday.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on termination pay practices in New Mexico can be found in Payment of Wages: New Mexico. Federal requirements can be found in Payment of Wages: Federal.