New Mexico employment law overview

Published: July 12, 2012 | Updated: December 31, 2022 | by Brightmine Editorial Team

New Mexico has laws that provide greater protections to employees than federal law, including a higher minimum wage and health care continuation coverage obligations for smaller employers, but generally follows federal law with respect to topics such as occupational safety and overtime pay.

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:

Fair employment practices

The New Mexico Human Rights Act (NMHRA) protects employees from discrimination and harassment based on protected characteristics, such as:

• Race (including hair texture, protective hairstyles and other traits historically associated with race).
• Color.
• Ancestry.
• National origin.
• Religion.
• Physical or mental handicap or serious medical condition.
• Sex.
• Pregnancy, childbirth or condition related to pregnancy or childbirth.
• Age.
• Sexual orientation.
• Gender identity.
• Spousal affiliation.

The NMHRA generally applies to employers with four or more employees; however, the threshold for discrimination based on spousal affiliation is 50 or more employees.

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.

Equal pay

The Fair Pay for Women Act prohibits an employer from discriminating within any establishment between employees based on sex by paying lower wages to employees of the opposite sex for equal work on jobs that require equal skill, effort and responsibility and that are performed under similar working conditions. Exceptions may only be made under a seniority system, a merit system or a system that measures earnings by quantity or quality of production.

Pregnancy accommodation

The NMHRA requires an employer with four or more employees to provide reasonable accommodations to employees and applicants for pregnancy, childbirth, or a related condition. A reasonable accommodation means a modification or adaptation of the work environment, work schedule, work rules or job responsibilities that is reached through good faith efforts to explore less restrictive or less expensive alternatives that will enable an employee to perform the essential functions of the job, and that does not impose an undue hardship on the employer.

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.

Recruiting and hiring

Ban the box

New Mexico employers using written or electronic employment applications may not inquire about a job applicant’s criminal history or conviction on a job application. They may, however, take an applicant’s conviction into consideration after reviewing the employment application and upon discussing employment with the applicant.

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 $12.00 per hour, with certain exceptions.

Breastfeeding breaks

A New Mexico employer must provide flexible break times to allow a nursing mother to pump breast milk at work. An employer does not need to pay for a nursing mother’s break time in addition to established employee breaks.

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.
• Any place where explosives are used.

Minors who are under 16 years of age are prohibited from working in a variety of other occupations, including 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 (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 in school weeks.
• More than 40 hours in a nonschool weeks.

Different hours of work apply to minors employed in the performing arts.

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.

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 employee’s death, divorce or legal separation.

Payment of wages

Employee wages must be paid in cash, or by checks, payroll vouchers or drafts on banks, convertible into cash on demand at full face value. Wages may be paid by direct deposit under certain circumstances.

Pay frequency

Nonexempt employees must be paid on regular paydays designated in advance. Employees may be paid semimonthly, up to 16 days apart.

Exempt employees may be paid on a monthly basis, unless a collective bargaining agreement provides otherwise.

Pay statements

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

• The identity of the employer.
• Hours worked.
• Gross pay.
• Itemized deductions.
• Total wages and benefits earned.

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.

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.

Time off and leaves of absence

New Mexico has a few laws relating to required time off and leaves of absence for employees, which cover all employers. These laws include:

• Kin care leave.
• Domestic violence leave.
• Jury duty leave.
• Voting leave.
• Emergency responder leave.
• Military leave.
• Paid sick 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.

Health and safety

Key New Mexico requirements impacting health and safety are:

Smoke-free workplace

With limited exceptions, New Mexico’s Dee Johnson Clean Indoor Air Act prohibits smoking, including the use of electronic cigarettes (e-cigarettes), in any enclosed indoor workplace, including in:

• Offices.
• Employee cafeterias, lunchrooms, break rooms and lounges.
• Restrooms.
• Hallways, stairways and elevators.
• 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.

Safe driving practices

New Mexico prohibits drivers from reading or viewing a text message or manually typing on a handheld mobile communication device for any purpose. In addition, commercial drivers may not use a handheld mobile device. Exceptions apply for contacting emergency or medical assistance.

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.

Organizational exit

Employees who are involuntarily terminated must be paid within five days of termination if their 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.

An employee who quits or voluntarily resigns must be paid on the next regular payday.

If an employee dies, the employer may pay all unpaid wages due to the employee’s surviving spouse.

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.