Compliance Watch:

What are my rights as an hourly employee in New Mexico?

To learn more about New Mexico labor laws, you can access our informative guides on understanding your rights as a salaried employee in New Mexico and discovering how to run payroll in New Mexico.

The phrase “minimum wage” indicates the lowest hourly wage an employee can receive for their work. While federal wage regulations are regulated by the FLSA, individual states possess the authority to establish a minimum wage that exceeds the minimum federal requirement. Notably, New Mexico is among the states that have a minimum wage that is greater than the federal standard.

As of January 1, 2024, New Mexico’s minimum wage is set at $12.00 per hour. Hence, in accordance with New Mexico’s minimum wage law, an hourly employee would typically earn a minimum of $480 in a standard 40-hour work week.

While certain employees possess the legal right to receive the state’s minimum hourly wage, it is essential to recognize that both federal and state laws implement exceptions for particular categories of workers regarding both minimum wage and overtime regulations. These exempted employees include the following groups

• Tipped Employees: Employees who earn tips may earn lower minimum wage than the state’s minimum wage requirements, so long as the tips combined with the hourly wage amounts to the state’s minimum hourly wage of $12.00.
• Full-time students: High school or college students who work part-time may receive a minimum hourly wage of $10.20 per hour, which is 85% of the state’s mandated minimum wage, for up to 20 hours of work in a given week.
• Employees below 20 years old: Federal law rules allow employees below the age of 20 to receive a minimum pay of $6 per hour within the first 90 days of employment. After 90 days of commencing employment, they must earn the minimum wage that has been set by the state.
• White-collar employees (i.e. bona fide executives, administrative workers, and professionals)
• Outside salesmen
• Agricultural employees
• Employees whose work involves handling, drying, packing, packaging, processing, freezing or canning of any agricultural or horticultural commodity in its unmanufactured state
• An individual who voluntarily works for an educational, charitable, religious, fraternal or nonprofit organization
• Salespeople or employees compensated upon piecework, flat rate schedules or commission basis
• Seasonal employees working for an employer that obtains and holds a valid certificate issued annually by the Labor Relations Division of the Workforce Solutions Department
• Employees working for charitable, religious or nonprofit organizations who reside on the premises of group homes operated by such charitable, religious or nonprofit organizations for persons who have a mental, emotional or developmental disability.

The overtime requirements under both federal and state laws specify that any employee who works over 40 hours a week is eligible for overtime pay at a rate of 150% their standard rate of pay. Hence, an hourly worker in New Mexico would generally earn a pay of $18.00 for working any hours that exceed their standard work hours.

While certain employees may qualify for overtime compensation mandated by the state, it is worth emphasising that state laws exclusively exempt employees working for the United States or state or any political subdivision of the state from receiving overtime pay.

Certain U.S. states have enacted their own laws governing rest and meal breaks, whereas others adhere to the federal guidelines established by the FLSA for compensation related to rest and meal breaks due to the absence of specific state laws. Notably, the state of New Mexico is among those that follow the federal guideline.

The federal guidelines stipulate that employers are not obligated to provide rest and meal breaks to employees, but if they choose to do so, rest breaks lasting 20 minutes or less must be compensated. Conversely, meal breaks that are 30 minutes or longer in length are not required to be paid for by employers.

Additionally, under the New Mexico Human Rights Act, employers are required to furnish nursing mothers with flexible, unpaid break times to express milk in a clean and private non-bathroom space located near the employee’s workplace.

In the U.S, employees are generally given leaves of absence for personal, medical, or family-related reasons. Some of these leave categories are governed by state or federal laws, which stipulate that eligible employees who meet the particular criteria must be provided with such leaves. In the state of New Mexico, a combination of state and federal laws mandate the provision of various leave options, securing an employee’s legal right to utilize them. The following list outlines some of the various types of leaves to which you, as an hourly employee in New Mexico, are rightfully entitled.

• Caregiver leave: New Mexico’s Caregiver Leave Act mandates that eligible employees who have been given sick leave by their employers to use for their own illness or injury must be allowed to use their accrued sick leave to care for their family members in alignment with the same terms and procedures fixed by the employer for any other utilisation of sick leave by eligible employees.
• Sick leave: According to the New Mexico Health Workplaces Act, an employee must accrue one hour of earned sick leave for every 30 hours worked. Employers have the option to choose a more generous accrual rate or can opt to offer employees with the full 64 hours of earned sick leave at the beginning of each year, which becomes effective on January 1. For employees who commence employment after January 1 in a given year, they will receive a pro-rata share of the 64 hours for use during the remaining part of that year. Furthermore, employees cannot use more than 64 hours of their earned sick leave within a 12-month period, unless the employer opts for a higher limit. This earned sick leave may be used for reasons relating to;
  • The health of the employee.
  • The care of the employee’s family member.
  • Meetings at the employee’s child’s school or the facility related to the health and disability of the child.
  • The absence necessary to domestic abuse, sexual assault or stalking that the employee or the employee’s family member has been subjected to.
• The Family and Medical Leave Act of 1993: The Family and Medical Leave Act is a federal law which grants eligible employees with a 12-week annual period of unpaid, employment-protected leave for particular family-related or serious health-related reasons. Employees are only qualified to utilise this leave if:
  • They were hired by the same employer for a minimum duration of 12 months before utilising this leave.
  • They have worked 1,250 hours at minimum within the 12 months of working under the same employer. 
  • They are working for an employer with at least 50 employees within a 75-mile radius.

Your employer may withhold a portion of your wages for various reasons, including tax payments, garnishments, and benefits like health insurance. However, due to the complexities of payroll deductions and the potential for unlawful wage withholding, both federal and state laws have been enacted to protect your wages from wrongful deductions. 

In the state of New Mexico, an employer is prohibited from deducting, withholding, or diverting wages from an employee’s paycheck unless certain conditions are met, such as:

• Being permitted or required to do so by state or federal law or court order
• The employee providing written consent to the deduction

Furthermore, an employer may deduct any of the following from an employee’s paycheck only if the employee has given prior written authorisation:

• cash shortages
• breakage, damage, or loss of the employer’s property
• uniforms
• required tools
• other items necessary for employment

As an hourly employee in New Mexico, it is imperative to remain vigilant of your  employment rights and the compensation benefits that you are entitled to throughout your tenure. The list below outlines several employment privileges that you have: 

• Minimum wage: Employees in New Mexico have the legal right to earn the state’s prevailing minimum wage, which is currently fixed at $12.00 per hour.
• Overtime: Federal and state laws require employers to compensate non-exempt employees for working any hours beyond 40 hours in a week at a fixed wage rate of 150% their regular hourly wage.
• Worker’s compensation insurance: According to New Mexico’s statutes, employers are required to pay for employees who have sustained injuries arising out of and in the course of their employment. Furthermore, if an employee dies due to a work-related accident, the employer is obligated to pay an individual elected by the director or court to look after the family members left behind. The payment has to be made in accordance with  the requirements of the Workers’ Compensation Act. 
• Unemployment insurance benefits: Unemployment insurance benefits serve to offer temporary financial support to individuals who have lost employment through no fault of their own. These benefits are intended to partially offset lost wages while the unemployed individual looks for work or until they are rehired. Unemployment insurance benefits are covered by employers; nothing from an employee’s paycheck is deducted to pay for this coverage. 
• Extended health insurance benefits: The Consolidated Omnibus Budget Reconciliation Act (COBRA) is a federal law which allows employees to extend their health insurance benefits after their employment ends. Because the federal COBRA is only applicable to employers that have 20 or more employees, many states in the U.S. have made their own version of this law, commonly known as “mini-COBRAs”. The mini-COBRA of New Mexico allows employees to continue their health coverage benefits for up to 6 months. 
• Other obligatory time-off provisions: These include voting leaves, jury duty leaves, leaves for domestic violence or sexual assault victims, military leave, emergency responder leave and civil air patrol leave.

At both federal and state levels, a range of laws have been enacted to shield employees from various workplace inequalities, including issues pertaining to health and safety, discrimination, reporting misconduct, and more. The following list encompasses several key laws that provide legal protection for your rights and well-being during your tenure.

• Social media protection laws: New Mexico’s labor laws forbid employers from requesting or requiring prospective employees to disclose the login credentials of their social media accounts.
• Human Immunodeficiency Virus Test protection laws: an employer is prohibited from mandating the disclosure of an individual’s human immunodeficiency virus (HIV)-related test results as a condition for employment, promotion, or continued employment, except when the absence of the virus is a  legitimate and essential requirement for the job in question.
• Ban the box protection laws: New Mexico’s statutes do not allow employers to make inquiries about a job applicant’s criminal record on a job application but may allow such considerations after reviewing the application and discussing it with the applicant. The employer can inform the public or an applicant that the job position may not be available to individuals with a specific criminal record, as stipulated by the law or the employer’s policy.
• Whistleblower protection laws: Employers are prohibited from terminating or discriminating against an employee for the following actions: Asserting their rights under the Minimum Wage Act; Taking domestic-violence leave; Filing a workers’ compensation claim; Submitting a claim for occupational disease benefits; Raising a complaint or taking part in proceedings relating to workplace safety; Submitting  a complaint, objecting to, or participating in a proceeding under the New Mexico Human Rights Act.
• Anti-discrimination protection laws: Employers with four or more employees are prohibited by the New Mexico Human Rights Act (NMHRA) to discriminate an employee based on their race, age, religion, color, national origin, ancestry, sex, sexual orientation, gender, gender identity, pregnancy, childbirth or condition related to pregnancy or childbirth, physical or mental disability, or serious medical condition. Employers with 50 or more employees are also prohibited from discriminating against an employee based on their spousal affiliation.

Much like other U.S. states, New Mexico complies with employment-at-will laws. This means that both the employer and the employee have the freedom to end the employment relationship at any time and for any reason or no reason. While these laws are generally in force, there are several exceptions that limit an employer’s extensive ability to terminate an employee. These exceptions are as follows:

• Breach of contract: According to the laws of New Mexico, when employees enter into oral or written contracts, the employment-at-will laws cease to be applicable. As a result, employers cannot terminate employees at any time for any reason and must comply with the contractual provisions that specify the grounds for an employee’s termination. Furthermore, in New Mexico, collective bargaining agreements and employee handbooks are also considered employment contracts. Employers who breach these contractual terms may be subject to lawsuits for breach of contract filed by their employees.
• Public policy: Essentially, the public policy exemption prohibits employers from terminating employees for reasons that would be considered unjust by society. For instance, it is considered unjust if an employer fires an employee for filing a worker’s compensation claim when they are entitled by law to do so. It is also forbidden to terminate an employee for refusing to participate in an illegal activity under state law, such as committing perjury by making false claims at the employer’s request.
• Retaliation: In New Mexico, employees cannot be retaliated against by employers for filing a complaint against them. For instance, if an employee files a complaint alleging they were not promoted because of their race, the employer is prohibited from terminating them in retaliation. Additionally, employees cannot be terminated for testifying against their employer in court or for participating in actions aimed at ending workplace discrimination.
• Discrimination: Employers in New Mexico with four or more employees cannot terminate an employment relationship based on an employee’s color, race, country of origin, pregnancy status, religion or disability. Furthermore, employees cannot be terminated based on their sexual orientation by employers with more than 15 employees while employers with more than 50 employees are prohibited from terminating an employee based on their marital status.

Furthermore, an employee that has been terminated must be issued their final paycheck within 5 days of dismissal if the wages are fixed. If they are based on a task, piece or commission basis, they must be paid their due wages within 5 days from their termination date. If an employee resigns due to a labor dispute, the employer must pay their final paycheck within the next regularly scheduled payday, according to the wage and hour laws.

Severance pay is the financial compensation offered by an employer to an exiting employee, typically calculated based on the employee’s length of service at the company. Its primary objective is to provide financial support to individuals who are transitioning between positions while they actively pursue new career prospects.

While severance pay serves as a valuable perk to employees, there are no legislative provisions at the federal or state level that require employers to provide severance pay in New Mexico. Instead, it is a subject that depends on the mutual consensus between an employer and an employee. Therefore, if an employer chooses to provide you with severance pay, they will need to have the provision outlined in the employment contract or collective bargaining agreement, of which you and your employer must consent to.