New Mexico Employment Law 2019 Review

By Benjamin A. Nucci and Walker F. Crowson

It’s been a busy year for New Mexico legislators.

On January 1, 2019, Democrat Michelle Lujan Grisham became New Mexico’s 32nd governor, replacing Republican Governor Susana Martinez. Gov. Grisham campaigned on a platform of revamping the state’s existing laws and did not waste any time upon taking office. Over 1,000 bills were introduced and 310 bills passed – the highest for New Mexico in a decade.

Importantly, Gov. Grisham enacted a suite of new laws governing employment in New Mexico. This article takes a general look at some of the more prominent changes for New Mexico employers. 

SENATE BILL 123 – The Caregiver Leave Act

SB 123 created the Caregiver Leave Act, which requires private employers who provide sick leave for employees to allow those employees to use their accrued sick leave to care for certain family members in the same way an employee can use accrued sick leave for themself. Stated another way, SB 123 prohibits private employers from denying the use of accrued sick leave to employees for the care of certain family members. The new law also contains anti-retaliation and anti-discrimination provisions to protect employees who use sick leave to care for family members. Importantly, SB 123 does not require an employer to provide paid sick leave.

The new law is codified at 50-16-1 to 50-16-4, NMSA 1978. A copy of SB 123 can be found here.

SENATE BILL 96 – The Criminal Offender Employment Act

SB 96 created the Criminal Offender Employment Act that bans inquiries into an employment applicant’s arrest or conviction history. Under the law, private employers cannot inquire about an applicant’s arrest or conviction history on an initial written or electronic employment application. Employers can inquire into an applicant’s conviction history later in the hiring process, such as during an interview or as part of a pre-hire criminal background check. Significantly, the Act allows employers to notify the public and/or an applicant – such as through a job posting, or during an interview – that the law or the employer’s policy could disqualify an applicant who has a certain criminal history from employment in particular positions with that employer.

The new law appears at Section 28-2-1, NMSA 1978. A copy of SB 96 can be found here.

HOUSE BILL 85 – Union Security Agreements

Thanks to HB 85, New Mexico is no longer a right to work state. The new law rejects “right to work” as a matter of statewide policy and instead permits an employer or union in New Mexico to execute an agreement requiring membership in a union as a condition of employment. In addition, the law prohibits local governments in New Mexico from enacting right to work ordinances, thereby invalidating ordinances enacted in 10 New Mexico counties and one village that barred union membership as a condition of employment.

The law is codified at Section 50-4-35, NMSA 1978. A copy of HB 85 can be found here. 

SENATE BILL 227 – Additional Unlawful Discrimination Practices

SB 227 amended the New Mexico Human Rights Act to remove the employee limitation surrounding prohibitions on sexual orientation and gender identity discrimination in the workplace. Previously, discrimination based on sexual orientation and gender identity only applied to employers with 15 or more employees. Under SB 227, the threshold no longer applies. According to the 2018 Quarterly Census of Employment and Wages program, there are approximately 45,000 employers in New Mexico that have fewer than 15 employees. See here.

The law appears in Section 28-1-7(A), NMSA 1978. A copy of SB 227 can be found here.

SENATE BILL 437 – Minimum Wage Increase

SB 437 increases the state’s minimum wage from $7.50 per hour to $9.00 per hour effective January 1, 2020. Each year thereafter, the state’s minimum wage is set to increase as follows:

• 2021: $10.50 per hour.
• 2022: $11.50 per hour.
• 2023: $12.00 per hour.

Tipped employees must be paid a minimum hourly wage of $2.35 effective January 1, 2020, with the following increases effective January 1 of each year thereafter:

• $2.55 per hour.
• $2.80 per hour.
• $3.00 per hour.

Importantly, the law does not affect municipalities or counties which have higher minimum wages. For example, the following local jurisdictions in New Mexico currently regulate their own minimum wage:

• City of Albuquerque: $9.20 per hour, with a reduced rate if the employee's employer provides certain healthcare and/or childcare benefits to the employee. See Albuquerque Code of Ordinances, 13-12-1 et seq. This increases to $9.35 on January 1, 2020. See here.
• Bernalillo County: $9.05 per hour. See Bernalillo County Ordinance, Sec. 2-218 et seq. This increase to $9.20 per hour on January 1, 2020. See here.
• City of Las Cruces: $10.10 per hour. See City of Las Cruces Municipal Code, Sec. 14-60 et seq. This increases to $10.25 per hour on January 1, 2020. See here.
• City of Santa Fe: $11.80 per hour. See City of Santa Fe City Code 28-1 et seq. Increases occur on March 1 based on the Consumer Price Index. It is unclear at this stage whether it will increase on March 1, 2020.
• Santa Fe County: $11.80. See Santa Fe County Ordinance No. 2014-1. Increases occur on March 1 based on the Consumer Price Index. It is unclear at this stage whether it will increase on March 1, 2020.

The statewide minimum wage law appears at Section 50-4-21, NMSA 1978. A copy of SB 437 can be found here.

SENATE BILL 406 – Medical Marijuana

Signed on April 4, 2019, SB 406 became the first amendment to the Lynn and Erin Compassionate Use Act, which permits the use of medical cannabis in a regulated system for alleviating symptoms caused by debilitating medical conditions and their medical treatments.

Among other things, SB 406 created Section 11, titled “Employment Protections,” which makes it unlawful for an employer to discriminate against an applicant or employee for the use of medical marijuana pursuant to the Act. There is an exception if compliance would “cause the employer to lose a monetary or licensing-related benefit under federal law or regulations. …” The anti-discrimination provision also does not apply to “an employee whose employer deems that the employee works in a safety sensitive position.” Moreover, SB 406 allows employers to prohibit, or discipline an employee for, “use of, or being impaired by, medical cannabis on the premises of the place of employment or during the hours of employment.”

Section 11 of SB 406 is codified at Section 26-2B-11, NMSA 1978. A copy of SB 406 can be found here.