An Overview of Termination Laws in New Mexico
Most employees in New Mexico are "at will", meaning that they can be terminated at any time and for any reason that is not "protected" under New Mexico state law. Exceptions to the employment at will doctrine include:
Even when an employee believes his employer has unlawfully terminated his employment, New Mexico courts have traditionally favored employers in their capacity to terminate. For example, in 1939 the New Mexico Supreme Court endorsed the common law defense of good cause and creed "where the employee secretly entertains and promulgates those views which are in direct conflict with the policy of the owner of the business" (Miller v. Lujan, 1939-NMSC-038, 43 N.M. 497). An employee that alleges wrongful termination must file suit within three years to recover economic, emotional, or punitive damages. However, if an employee is covered by an employment contract, this covenant may provide a remedy more specific than the common law remedies provided above and should be reviewed immediately after termination . The statutes are narrowly drawn and apply only to specific categories of individuals, including the following protections: Federal law may provide employees with additional protections against employment at will. Federal antidiscrimination law prohibits employment discrimination on the basis of race, color, religion, sex, national origin, age, disability, or genetic information. In many cases there may be more than one legal basis for the employee’s claim alleged against the employer. If the employee is a member of two or more protected groups the employee may be able to bring multiple claims against the employer under both federal and state law. Employers should review all policies and employment contracts to insure that they do not run afoul of federal or state law. While most terminations and reductions in force are lawful, employers can minimize the risk of claims through careful performance management and by working with their legal counsel as they transition employees out of the organization.
Rights Employees Have During the Termination Process
Employees in New Mexico have specific rights regarding notice and pay upon termination. For instance, employers are legally obligated to provide terminated employees with their final pay within 5 days of termination. This is applicable to employees who were discharged as well as those who resigned. Even if an employee quit without notice, the employer must still remit their full pay within that same time frame. If the last day of work is not a regular pay day, the final paycheck must be given the first regular pay day.
Unfortunately, employers may convince some employees to abandon their paychecks, offering them either partially or fully. When terminated employees forfeit their paychecks, however, the terms of that forfeiture are determined by the type of employment agreement and its stipulations. For example, if the employee had not worked the requisite number of hours to justify the pay, they have no recourse. Many workers, however, do not even know what they are giving up when they sign to forfeit payment. Last week we discussed this issue in more detail.
Permissible Actions in a Termination
Like many states, New Mexico is a right-to-work state, meaning neither employees nor employers are required to be members of a union to maintain employment. Employers are also not required to give a reason for termination, thus providing some leeway and limit an employee’s ability to pursue wage recovery. However, New Mexico does have federal and state statutes that protect employees from termination for certain reasons.
Federal protections for employees’ rights include discrimination laws against workers in the protected classes defining wrongful termination. Discrimination can occur due to an employee’s:
New Mexico law ensures these same protections from workplace discrimination. Importantly, employees are entitled to express their opinions or beliefs obtained through their religion, so long as they don’t interrupt another employee’s right to religious freedom in the workplace. An employee can be terminated for not obeying an employer’s orders and for insubordination, unless those orders violate the employees’ protected class statutes.
Wrongful termination laws provide employees the right to sue an employer for firing in relation to a protected class statute. Speaking against a discriminatory statement made by a superior can also be considered protected. An employee can take an employer to court for harassment leading up to the termination of their employment, such as groping, touching, stalking, or sexually harassing through electronic means.
While employees have certain protections in wrongful termination cases, another important law is the New Mexico Whistleblower Protection Act. Employees cannot be fired for reporting wrongdoing within the workplace unless the employee acted in an unreasonable way or outside the scope of their job description. Whistleblowing can include reporting crimes, raising health or safety concerns, or complaining of discrimination. As it is a constitutional right for employees to speak against illegal conduct in the workplace, employers may not retaliate against employees for whistleblowing.
We mentioned above that it is legal for employers to terminate employees without a reason. However, the at-will doctrine is dangerous for employers because employees can freely share opinions and make statements about their workplace without fear of getting fired. In New Mexico, the only exception to this doctrine is if the employee is a contract worker.
Employees have the option to work under contract to gain more protections from wrongful termination. Working under contract allows for greater job security, as the employer must comply with the terms offered in the contract. Breach of the contract will fall under either tort laws or civil laws. The contract can list acceptable reasons for termination and requires both parties to live up to their end of the contract.
What Employers Must Do Upon Termination
Upon termination of a non-probationary employee, the employer shall, upon their next regular payday, furnish the terminated employee with the reasons, if any, for the termination. If the terminated employee is discharged for misconduct, the employer shall furnish them with a written statement setting forth the nature of the discharge for misconduct. The employer shall also furnish the terminated employee with information on whether the termination was due to a lack of work and, pursuant to the Employment Security Law, whether or not the discharge will affect their ability to receive benefits and the reason for which such benefits may be denied. There is a rebutable presumption that the employer has furnished the employee with this information.
Employers do not have to provide reasons for termination of an employee on a probationary period.
Pursuing A Claim For An Illegal Termination
New Mexico law provides for certain remedies or employment rights for employees who claim to have been wrongfully terminated. The Employment Security Department of the State of New Mexico administers the Employment Security Law, which provides unemployment insurance benefits for individuals who are unemployed in a manner covered by law. An employee who claims that he or she was wrongfully discharged may make a claim for wage recovery to recover unpaid wages. Additionally, an individual who claims to be wrongfully discriminated against or fired (i.e., wrongfully discharged) from his or her place of employment may file a complaint with the New Mexico Human Rights Bureau , which investigates and facilitates mediating or conciliating settlements of discrimination claims.
A recent lawsuit by the state attorney general against a supermarket chain in New Mexico highlights the risks an employer faces by not fully understanding the New Mexico employment-at-will doctrine. The lawsuit was filed against a company that allegedly violated Section 11-4-12 of the New Mexico Statutes Annotated by firing an employee due to the employee’s disability (migraines). This law prohibits an employer from discharging an employee who is suffering from an illness or injury if the employee can perform his or her normal work duties.
What makes this case even more interesting is that the employee provided a note from his doctor that stated the employee would need to take periodic time off from work due to his medical condition and that the employee would be available to work only on those days when he is clear of symptoms. That’s right: the employer knew that the employee would be unable to perform the day-to-day duties of his job while his symptoms were active and fired him anyway, claiming that they did not have a position available for him to perform his duties "so severely limited." That’s a clear violation of Section 11-4-12.
Recent Changes in New Mexico Law on Termination
New Mexico labor laws are constantly changing, affecting termination practices in a number of ways. In 2017, the New Mexico Supreme Court clarified the common law rules regarding retaliatory discharge. In Romero v. Phillips (), the court held that an employee can sue for retaliatory discharge in the absence of a written employment contract, if the employer terminates the employee after the employee refuses to take part in illegal activity or attempts to report the activity to a supervisor, even if the employee has not engaged in any protected activity. The court’s holding means that employees do not necessarily need to report the illegal conduct to a state or federal entity or engage in an act protected by an anti-discrimination statute (like filing a complaint or suing) in order to bring a retaliation claim. This expansion of the retaliatory discharge doctrine increases the potential liability to employers.
Another change has been the expansion of the rights offered to employees with certain disabilities. The New Mexico Human Rights Act covers disabilities and allows employees to sue private and public employers who retaliate after the employees exercise their rights under the Act. However, previous case law indicated that absent an express anti-retaliation provision in the Act, there could be no lawsuit without some other source of protection. Buffington v. Tennessee Gas Pipeline Co., 570 F. Supp.2d 1265, 1310 (D.N.M. 2008). But in Hall v. Comet II Construction, LLC, 2015 WL 4687858 (D.N.M. Aug. 6, 2015), the court held that the legislature expressed its intent to create a private cause of action for violations of the rights enumerated in the New Mexico Human Rights Act. Therefore, absent a statute preempting medical marijuana protections under the Human Rights Act, employers can now be liable for terminating employees who engage in Medical Marijuana use. Sutton v. New Mexico State Police, D-101-CV-2014-02105 (N.M. Dist. Ct. April 12, 2017).
The New Mexico Paid Sick Leave law (SB 147) is currently in committee and awaiting passage. The proposed legislation requires employers with at least 2 employees to give eligible employees a minimum of 56 hours (7 days) of paid sick leave each year. The requirement can be satisfied through employer policies or by accruing one hour for every 30 hours worked. Employers can cap the maximum number of hours an employee can earn per year at 64 hours. Employees can also carry over up to 48 hours per year, but employers are not required to permit this. Current exemptions include employees who are already covered by a paid sick time policy and employees who work less than 56 hours per calendar year.
The "Sanctuary Cities" Bill, HB 314, was introduced in February 2017. The proposed law states that it is unlawful for any governing body or agency of the state, county, or municipality to:
Violators may be held liable for reasonable attorney fees and costs incurred by the person who files a civil action. These changes in New Mexico labor laws will likely affect the workplace policies of many New Mexico employers.
How Federal Statutes Affect Terminations In New Mexico
One thing to keep in mind is that New Mexico State Labor and Employment Laws may both apply. Federal employment laws do not cease simply because an employee is working in a different state, however. In some cases, such as the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), federal laws will apply regardless of whether the state of New Mexico has specific laws touching on those areas, or does not have any laws touching on those areas . So if an employee is terminated while on leave that qualifies as FMLA, or during a time when the employee is considered disabled under the ADA, then that employee may still potentially have a case against the employer for violation of FMLA or ADA, even if New Mexico State Laws do not have anything specific regarding FMLA or ADA as they relate to employment and termination.