New Mexico Employment Law Desk Reference (Second Edition)

New Mexico Employment

Law Desk Reference

(Second Edition)

Labor and Employment Group

Copyright © 2013 by Rodey Law Firm Labor and Employment Group.

Library of Congress Control Number:       2013912854

ISBN:         Hardcover                               978-1-4836-7029-4

                   Softcover                                 978-1-4836-7028-7

                   Ebook                                      978-1-4836-7030-0

All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the copyright owner.

This desk reference should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer concerning your own situation and any specific legal questions you may have.

Rev. date: 09/09/2013

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Contents

Preface

Section 1       Employment Status

§ 1.1 Overview

§ 1.2 Classification

§ 1.3 Effect of Classification

§ 1.3.1 Workers’ Compensation

§ 1.3.1.1. Statutory and Special Employees

§ 1.3.1.2 Tort Liability to Independent Contractors

§ 1.3.2 Unemployment Compensation

§ 1.3.3 Liability for Negligence of Independent Contractors

§ 1.3.3.1 Inherently Dangerous Activity

§ 1.3.3.2 Negligent Hiring

§ 1.4 Withholding from Wages

Section 2       At-Will Employment

§ 2.1 Overview

§ 2.2 The Employment-at-Will Rule

§ 2.3 Creating an Employment-at-Will Relationship

§ 2.4 Exceptions to the Employment-at-Will Rule

Section 3       Contract Issues

§ 3.1 Overview

§ 3.2 Express Contracts

§ 3.3 Implied Contracts

§ 3.3.1 Avoiding the Creation of an Implied Contract

§ 3.3.1.1 Avoid Oral Promissory Language

§ 3.3.1.2 Avoid Written Promissory Language

§ 3.3.1.3 Include a Disclaimer in Policy Statements and Handbooks

§ 3.3.1.4 Obtain Acknowledgment of the Employment-at-Will Relationship

§ 3.4 Implied Covenant of Good Faith and Fair Dealing

§ 3.5 Promissory Estoppel

§ 3.6 Covenants Not to Compete, Confidentiality, and Other Agreements

§ 3.7 Arbitration Agreements

Section 4       Employment Law Torts

§ 4.1 Overview

§ 4.2 Retaliatory Discharge

§ 4.2.1 History and Summary

§ 4.2.2 Elements

§ 4.3 Intentional Interference with Contract

§ 4.3.1 Intentional Interference with Existing Contract

§ 4.3.2 Intentional Interference with Prospective

Contractual Relations

§ 4.4 Intentional Infliction of Emotional Distress

§ 4.5 Negligent Hiring, Supervision, and Retention

§ 4.5.1 Generally

§ 4.5.2 Elements

§ 4.5.2.1 Duty and Breach

§ 4.5.2.2 Causation

§ 4.5.2.3 Damages

§ 4.5.3 Respondeat Superior Compared

§ 4.5.4 Governmental Immunity

§ 4.6 Defamation

§ 4.6.1 Elements of Defamation

§ 4.6.2 Defamation Elements Defined

§ 4.6.3 Privilege

§ 4.7 Invasion of Privacy

§ 4.8 Prima Facie Tort

§ 4.8.1 Elements of Prima Facie Tort

§ 4.8.2 Intentional Act

§ 4.8.3 Intent to Injure or Harm

§ 4.8.4 Lack of Sufficient Justification

§ 4.8.5 Balancing Test

Section 5       New Mexico Human Rights Act

§ 5.1 Protected Classes

§ 5.2 Procedure

§ 5.3 Discrimination

§ 5.3.1 Generally

§ 5.3.2 Race, National Origin, and Ancestry

§ 5.3.3 Age

§ 5.3.4 Disability

§ 5.3.5 Sex

§ 5.3.6 Sex Harassment

§ 5.3.7 Religion

§ 5.3.8 Sexual Orientation and Gender Identity

§ 5.3.9 Spousal Affiliation

§ 5.4 Statutory Retaliation

§ 5.5 Faragher Defense

Section 6       Constructive Discharge

§ 6.1 Nature of the Doctrine

§ 6.2 Elements

§ 6.3 Constructive Discharge in Practice

§ 6.3.1 Adverse-Employment Actions Insufficient for Constructive Discharge

§ 6.3.2 Adverse-Employment Actions Sufficient for Constructive Discharge

Section 7       New Mexico Wage And Hour Law

§ 7.1 Overview

§ 7.2 Payment of Wages

§ 7.2.1 Paydays

§ 7.2.2 Former Employees

§ 7.2.3 Pay Method

§ 7.2.4 Deductions from Paychecks

§ 7.2.5 Minimum Wage

§ 7.2.6 Overtime

§ 7.2.7 Breaks, Meals, and Travel

§ 7.2.8 Record Keeping and Required Postings

§ 7.2.9. Payment of Wages in Dispute

§ 7.2.10 Enforcement and Penalties

§ 7.3 Fair Pay for Women Act

Section 8       Child Labor In New Mexico

§ 8.1 Overview

§ 8.2 Age

§ 8.3 Occupation

§ 8.4 The Entertainment Industry

Section 9       Workers’ Compensation

§ 9.1 Overview

§ 9.2 Covered Employers

§ 9.3 Employers’ Obligations

§ 9.4 Workers’ Compensation Eligibility

§ 9.4.1 The Individual Must Be a Worker

§ 9.4.2 The Individual Must Sustain an Accidental Injury or Death

§ 9.4.3 The Accidental Injury or Death Must Arise Out of and in the Course of the Worker’s Employment

§ 9.4.4 The Accidental Injury or Death Must Be a Natural and Direct Result of the Accident

§ 9.5 Notice Requirements

§ 9.6 Reporting Requirements

§ 9.7 Employers’ Defenses to Workers’ Compensation Claims

§ 9.7.1 Several Defenses Are Available to Employers Under the Act

§ 9.7.1.1 Worker’s Injury Is Self-Inflicted

§ 9.7.1.2 Worker’s Injury Is Caused by the

Worker’s Intoxication

§ 9.7.1.3 Worker’s Failure to Use Safety Devices

§ 9.8 Workers’ Compensation Act Exclusivity Provision

§ 9.8.1 The Act’s Exclusivity Provision

§ 9.8.2 Exceptions to the Act’s Exclusivity Provision

§ 9.8.2.1 An Employer Fails to Comply with the Provisions of the Act Regarding Insurance

§ 9.8.2.2 The Worker’s Injury Was Not the Result of

an Accident

§ 9.8.2.2.1 Intentional or Willful Conduct

§ 9.8.2.3 Causes of Action Not Barred by the Exclusivity Provision of the Act

§ 9.8.2.3.1 Sexual Harassment

§ 9.8.2.3.2 Retaliatory Discharge

§ 9.8.2.3.3 Spoliation of Evidence

§ 9.9 Rehiring an Injured Worker

Section 10       Unemployment Compensation Claims

§ 10.1 Overview

§ 10.2 The Unemployment Claims Process

§ 10.3 Qualification for Unemployment Benefits

§ 10.4 Special Eligibility Issues

§ 10.4.1 Educational Institutions

§ 10.4.2 Sports

§ 10.4.3 Ski Employees

§ 10.5 Disqualification for Unemployment Compensation Benefits

§ 10.5.1 The Individual Voluntarily Leaves His or Her Most Recent Position without Good Cause

§ 10.5.2 The Individual Has Been Discharged for Misconduct Connected to the Individual’s Work

§ 10.5.3 The Individual Has Failed without Good Cause to Either Apply for Available, Suitable Work When Directed to Do So by the Department or Accept Suitable Work When It Is Offered

§ 10.5.4 The Individual’s Unemployment Is Due to a Labor Dispute

§ 10.5.5 The Individual Has Received, or Is Seeking, Unemployment Benefits Under the Unemployment Compensation Law of Another State

§ 10.5.6 The Individual Is an Illegal Alien

§ 10.6 Deduction of Benefits

Section 11       New Mexico Occupational Health And Safety Act

§ 11.1 Overview

§ 11.2 Preemption

§ 11.3 Exemptions

§ 11.4 Liability for Violations

§ 11.5 Appealing Regulations

§ 11.6 Variances

§ 11.7 Records Requirement

§ 11.8 Consultation Inspection

§ 11.9 Emergency Procedures

§ 11.10 Complaints

§ 11.11 Retaliation

§ 11.12 Compliance Inspections

§ 11.13 Citations

§ 11.14 Appeal Process

§ 11.14.1 Contesting a Citation

§ 11.14.2 Administrative Review

§ 11.14.3 Review Commission

§ 11.15 Penalties

Section 12       Drug And Alcohol Testing

Section 13       Medical Insurance Laws

Section 14       Employee Records And Personnel Files

§ 14.1 Contents

§ 14.2 Employee Access to Personnel Files

§ 14.3 Confidentiality

Section 15       Garnishments Of Employee Wages

§ 15.1 Overview

§ 15.2 Duties of Employer in Garnishment Action

§ 15.3 Attorney’s Fees and Costs

Section 16       Employment References

§ 16.1 Overview

§ 16.2 Common-Law Privileges

§ 16.2.1 Absolute Privilege

§ 16.2.2 Conditional Privilege

16.2.2.1 Abuse of a Conditional Privilege

§ 16.3 Statutory Privilege

§ 16.4 Common-Law Duty Not to Misrepresent Facts

§ 16.4.1 Development of the Common-Law Duty

§ 16.4.2 Common-Law Duty and Defamation Lawsuits

Section 17       Miscellaneous Statutory Rights/Duties

§ 17.1 Reemployment of Persons in the Armed Forces (New Mexico USERRA)

§ 17.1.1 Right to Reinstatement

§ 17.1.2 Status on Reinstatement

§ 17.2 Nursing Mothers/Breast-feeding

§ 17.3 Employee Jury Duty

§ 17.4 Medical Testing

§ 17.4.1 HIV Testing

§ 17.4.2 Genetic Testing

§ 17.5 Smoking

§ 17.6 Directory of New Hires

§ 17.7 State Posting Requirements for Employers

§ 17.8 Tape Recording of Conversations

§ 17.9 Voting Rights

§ 17.9.1 Time Off for Voting

§ 17.9.2 Protection of Political Opinions or Beliefs

§ 17.10 Promoting Financial Independence for Victims of Domestic Abuse Act

§ 17.11 Social Media

Section 18       Laws That New Mexico Does Not Have

Section 19       Online Resources For Employers

PREFACE

Welcome to the second edition of the New Mexico Employment Law Desk Reference. After receiving a great deal of positive feedback from our first edition, we wanted to provide you with a new version of our desk reference that includes recent updates in the law. Like the first edition, the second edition focuses on state labor and employment laws covering New Mexico’s private employers. We want to remind you that although we do not discuss federal labor or employment law, you should not overlook this body of law. Should you encounter a federal labor or employment question, seek counsel or consult one of the many commercially available publications.

In this second edition, you will find guidance on New Mexico statutes, cases, and regulations addressing matters, such as drug and alcohol testing, the New Mexico Occupational Health and Safety Act, and an employer’s obligations under the Workers’ Compensation Act. It is our hope that the second edition will continue to be a useful reference tool for questions involving New Mexico’s private employers.

We continue to welcome your comments and constructive criticisms, and we look forward to incorporating them into future editions.

The lawyers of Rodey Law Firm’s Labor and Employment Group

SECTION 1

EMPLOYMENT STATUS

§ 1.1 Overview

This section analyzes the method and consequences under New Mexico law of classifying a worker as either an employee or an independent contractor in several different contexts. First, it summarizes the test for determining whether a worker is an employee or an independent contractor. The section continues by discussing the effect the classification has on the workers’ compensation system, unemployment compensation, and tort liability.

§ 1.2 Classification

New Mexico courts have employed an agency analysis to determine whether an individual is acting as an independent contractor or as an employee. Celaya v. Hall, 2004-NMSC-005, ¶ 11, 135 N.M. 115, 85 P.3d 239. The general test used to determine a worker’s employment status typically focuses on how much control the principal has over the worker in question. See Korba v. Atlantic Circulation, Inc., 2010-NMCA-029, ¶ 5, 148 N.M. 137, 231 P.3d 118 (New Mexico courts have utilized the right to control test to determine whether an employer-employee or independent contractor relationship exists.); see also Harger v. Structural Servs., Inc., 1996-NMSC-018, 121 N.M. 657, 916 P.2d 1324; Restatement (Second) of Agency § 220 (1958). [I]t is the right to control, not the exercise of it, that furnishes the test. Campbell v. Smith, 68 N.M. 373, 377, 362 P.2d 523, 526 (1961) (internal quotation marks and citation omitted), limited on other grounds by Sundance Mech. & Util. Corp. v. Atlas, 109 N.M. 683, 789 P.2d 1250 (1990), superseded in part by statute as stated in Reule Sun Corp. v. Valles, 2010-NMSC-004, 147 N.M. 512, 226 P.3d 611 (filed 2009).

Because the right to control test is more complex and demands a more nuanced approach than just determining the degree of control over an employee’s methods of work, the New Mexico Supreme Court adopted the following factors and methods prescribed from the Restatement (Second) of Agency § 220(2)(a)-(j) (1958):

1) the type of occupation and whether it is usually performed without supervision; 2) the skill required for the occupation; 3) whether the employer supplies the instrumentalities or tools for the persons doing the work; 4) the length of time the person is employed; 5) the method of payment, whether by time or job; 6) whether the work is part of the regular business of the employer; 7) whether the parties intended to create an employment relationship; and 8) whether the principal is engaged in business.

Korba, 2010-NMCA-029, ¶¶ 5-6 (citing Celaya, 2004-NMSC-005, ¶¶ 14-15) (internal quotation marks & citation omitted).

In addition to these factors, courts may be required to evaluate the circumstances unique to the particular case so as to perform a complete analysis. See Id. ¶ 6 (internal quotation marks & citation omitted). It should be noted, however, that no particular factor should receive greater weight than any other, except when the facts so indicate, nor should the existence or absence of a particular factor be decisive. See Harger, 1996-NMSC-018, 121 N.M. at 667, 916 P.2d at 1334. Instead, the totality of the circumstances should be considered in determining whether the employer has the right to exercise essential control over the work or workers. Id. Furthermore, "[h]ow an employment contract defines the status of an individual, while relevant and material, does not answer whether an individual is a[n] . . . employee or