What are the requirements relating to advertising open positions?
Anti-discrimination requirementsIt is unlawful for an employer to:
Print or circulate or cause to be printed or circulated any statement, advertisement or publication, to use any form of application for employment or membership or to make any inquiry regarding prospective membership or employment that expresses, directly or indirectly, any limitation, specification or discrimination as to race, color, religion, national origin, ancestry, sex, sexual orientation, gender identity, physical or mental handicap or serious medical condition, or, if the employer has fifty or more employees, spousal affiliation, unless based on a bona fide occupational qualification. (NMSA § 28-1-7(D).)
Because New Mexico courts rely on federal law in interpreting New Mexico state law, any federal prohibitions are also likely to be unlawful under New Mexico state law.
Arrest and conviction historyIn addition, effective from June 14, 2019, New Mexico will implement a “ban the box” requirement, limiting employers’ ability to inquire about arrest or conviction history on a written or electronic employment application. However, the new law will permit employers to notify the public or the applicant that an applicant can be disqualified for employment “in particular positions” under the employer’s policy if an applicant has “a certain criminal history” (2019 N.M. Laws Ch. 176, § 2).
(a)Criminal records and arrests
Effective as of June 14, 2019, New Mexico will implement a “ban the box” requirement, prohibiting employers from asking about an applicant’s arrest or conviction history on a written or electronic application (2019 N.M. Laws Ch. 176, § 2). The law will permit employers to consider an applicant’s conviction record after review of the application and during discussion with the applicant. The law allows employers to notify the public or the applicant that an applicant can be disqualified for employment with the employer “in particular positions” under the employer’s policy if an applicant has “a certain criminal history”.
Under NMSA § 24-21-4(D), it is unlawful to use genetic information in employment decisions.
Under NMSA 28-10A-1:
No person may require an individual to disclose the results of a human immunodeficiency virus related test as a condition of hiring, promotion or continued employment, unless the absence of human immunodeficiency virus infection is a bona fide occupational qualification of the job in question. (N.M. Stat. Ann. § 28-10A-1 (LexisNexis, Lexis Advance through Chapter 43 of the 54th Legislature's 2019 Regular Session).)
Under NMSA § 28-1-7(D), it is unlawful for an employer to:
Print or circulate or cause to be printed or circulated any statement, advertisement or publication, to use any form of application for employment or membership or to make any inquiry regarding prospective membership or employment that expresses, directly or indirectly, any limitation, specification or discrimination as to… physical or mental handicap or serious medical condition. (NMSA § 28-1-7(D).)
A number of important definitions for the state’s disability and medical condition protections are defined in New Mexico regulations (NMAC 188.8.131.52 (R, S, V, X, Z)).
New Mexico has no statute regulating drug testing employees or applicants.
New Mexico has no credit check law.
New Mexico has no specific law addressing immigration or employment eligibility verification. Both “national origin” and “ancestry” are protected classes under the New Mexico Human Rights Act (NMSA § 28-1-7(A)).
It is unlawful in New Mexico for an employer to request or require a prospective employee to provide a password to gain access, or to otherwise demand access, to the prospective employee’s account or profile on a social media networking website (NMSA § 50-4-34).
Wage and hour
What are the main sources of wage and hour laws in your state?
New Mexico’s wage and hour statutes (including minimum wage and overtime requirements) are contained in NMSA § 50-4-1 and following.
What is the minimum hourly wage?
Effective as of January 1, 2020, the state-wide minimum wage will increase from $7.50 per hour to $9 per hour, with incremental increases on January 1 of each following year, up to $12 per hour on January 1, 2023 (2019 N.M. Laws Ch. 114, § 2(A)).
Tipped employeesFor tipped employees who customarily and regularly receive more than $30 a month in tips, employers are permitted to pay these tipped employees at a lower hourly rate, as long as the total received is at least the state-wide minimum wage per hour when the wages and tips are added together. The lower hourly rate payable to tipped employees will also incrementally increase from the rate of $2.13 per hour in 2019 up to $3 per hour by 2023 (2019 N.M. Laws Ch. 114, § 2(D)).
StudentsFrom January 1, 2020, New Mexico law will set a state-wide minimum wage of $8.50 per hour for a student enrolled in secondary school who is working after school hours or when school is not in session, unless the student qualifies as a tipped employee (2019 N.M. Laws Ch. 114, § 2(B)).
Local variationsEmployers should review applicable local ordinances governing minimum wage, as they may require compensation of employees at rates higher than the state-wide minimum wage. Presently, the cities of Santa Fe, Albuquerque, and Las Cruces, as well as the counties of Santa Fe and Bernalillo, have higher minimum wage rates than required by state law.
What are the rules applicable to final pay and deductions from wages?
Timing of final pay If an employee is discharged by the employer, unpaid wages or compensation of a “fixed and definite amount” and “not based on a task, piece, commission, or other method of calculation” becomes immediately due on demand and must be paid within five days of the discharge (NMSA § 50-4-4(A)). Otherwise, the final paycheck must be issued to a discharged employee within 10 days of the discharge (NMSA § 50-4-4(B)). If not paid within these timeframes, the statutes provide for recoverable damages in a civil action by the employee. If an employee quits or resigns employment, the final payment for wages or compensation must be paid no later than the next succeeding payday (NMSA § 50-4-5). Under NMSA § 50-4-7, if there is a dispute over wages the employer is required to give written notice to the employee of the amount of wages conceded to be due, and to pay such amount unconditionally, within the above-stated timeframes.
DeductionsNMSA § 50-4-2(B) regulates deductions, providing that employers are required to “pay wages in full, less lawful deductions and less payroll deductions authorized by the employer and employee” and that “wages shall be paid… without any reduction or deduction, except as may be specifically stated in a written contract of hiring entered into at the time of hiring.” New Mexico regulations define a “written authorization” as “a document an employee signs at the time of hiring or prior to making a deduction, giving the employer permission to deduct certain items from the employee’s pay” (see NMAC 184.108.40.206(R)). This regulation also provides that “a written authorization is needed for an employer to deduct an advance or over-payment of wages; however, the employer must pay at least minimum wages times the hours worked to the employee.”
Hours and overtime
What are the requirements for meal and rest breaks?
New Mexico has no state laws requiring or regulating meal or rest periods.
What are the maximum hour rules?
NMSA § 50-4-30 provides that no employee be required to work for more than 16 hours in a 24-hour period, with the exception of firefighters, law enforcement officers, employees who are in a standby position or are working in emergency situations, or farm or ranch hands whose duties require them to work longer hours.
New Mexico also restricts the number of hours that children between the ages of 14 and 16 may work (NMSA § 50-6-3).
How should overtime be calculated?
New Mexico requires that overtime pay be paid to non-exempt employees at one-and-a-half times their regular hourly rate for hours worked in excess of 40 hours per seven-day work week.
What exemptions are there from overtime?
Exceptions to the general New Mexico statute on overtime can be found both in exclusions from the coverage of the minimum wage statute, as well as exemptions of certain classes of employers from coverage of the overtime statute.
NMSA § 50-4-21 excludes several classes of employees from overtime coverage, including:
- individuals employed in domestic service in or about a private home (who are currently excluded from coverage of the state’s overtime law, NMSA § 50-4-21(C)(1)) – recently enacted legislation removes this exclusion as of June 14, 2019;
- individuals employed in a bona fide executive, administrative, or professional capacity and forepersons, superintendents, and supervisors (NMSA § 50-4-21(C)(2), NMAC 220.127.116.11(F));
- certain volunteers engaged in activities of educational, charitable, religious, or non-profit organizations (NMSA § 50-4-21(C)(4));
- salespersons or employees compensated on piecework, flat-rate schedule, or commission basis (NMSA § 50-4-21(C)(5));
- students regularly enrolled in primary or secondary schools working after school hours or on vacation (NMSA § 50-4-21(C)(6));
- registered apprentices and learners otherwise provided by law (NMSA § 50-4-21(C)(7));
- persons aged 18 or under who are not students in a primary, secondary, vocational, or training school (NMSA § 50-4-21(C)(8));
- persons aged 18 or under who are not graduates of a secondary school (NMSA § 50-4-21(C)(9));
- G.I. Bill trainees while under training (NMSA § 50-4-21(C)(10));
- seasonal employees of an employer holding a valid certificate issued by the Director of the Labor Relations Division of the New Mexico Department of Workforce Solutions (NMSA § 50-4-21(C)(11));
- certain specified employees in the agriculture and horticulture industry (NMSA § 50-4-21(C)(12-13)); and
- employees of charitable, religious, or non-profit organizations who reside on the premises of group homes operated by such charitable, religious, or non-profit organizations for persons who have a mental, emotional, or developmental disability (NMSA § 50-4-21(C)(14)).
NMSA § 50-4-24 provides for several additional exemptions from overtime, including:
- employers of workers engaged in the ginning of cotton for market, in a place of employment located within a county where cotton is grown in commercial quantities, if each employee is employed for a period of not more than 14 weeks in the aggregate in a calendar year (NMSA § 50-4-24(A));
- employers of workers engaged in agriculture, where “‘agriculture’ has the same meaning used in Section 203 of the federal Fair Labor Standards Act of 1939 [29 USCS § 203]” (NMSA § 50-4-24(B)); and
- overtime worked by an employee of an air carrier providing scheduled passenger air transportation subject to Subchapter II of the Federal Railway Labor Act or the air carrier’s subsidiary that is subject to Subchapter II of the Federal Railway Labor Act, where the overtime is not required by the employer and is arranged through a voluntary agreement of employees to trade scheduled work shifts which meets certain statutory requirements (NMSA § 50-4-24(C)).
What payroll and payment records must be maintained?
Employers are required to maintain accurate records of “hours worked and wages paid to each employee” for at least one year after entry of the record (NMSA § 50-4-9(A)).
In addition, New Mexico regulations require employers to maintain certain records for unemployment compensation purposes (NMAC 11.3.300.309; 11.3.400.401).