Legal Alerts

New Mexico Labor & Employment Law Developments – A 2021 Year-In-Review

Albuquerque, N.M. (January 12, 2022) - New Mexico saw significant changes in employment law in 2021. It increased the statewide minimum wage, passed legislation requiring paid sick leave, and the Tenth Circuit Court of Appeals issued a decision that impacts how employers must compensate for the time it takes employees to start up a computer and launch certain software before they can clock-in, deeming that time integral to the job and therefore compensable.

Statewide Minimum Wage Increased as of January 1, 2022

In 2019, Governor Lujan Grisham signed into law an increase to the New Mexico minimum wage, which began on January 1, 2020, with annual increases through January 1, 2023. As of January 1, 2022, the statewide minimum wage increased to $11.50 per hour, and $2.80 per hour for tipped employees. The minimum wage is set to increase to $12.00 per hour, and $3.00 per hour for tipped employees on January 1, 2023.

It is important for employers to note how the statewide increase in the minimum wage for New Mexico affects cities or counties that have set their own minimum wages. The New Mexico Department of Workforce Solutions will enforce the highest minimum wage applicable. Albuquerque, Bernalillo County, Las Cruces, the City of Santa Fe, and Santa Fe County have each enacted a separate minimum wage that is either higher than that of the state, or, in certain instances, is now superseded by the statewide increase. As of 2022, the minimum wage for each of these locations differs from the recent statewide increase as follows:

  • Albuquerque: Minimum wage for tipped employees is $6.90 per hour.
  • Bernalillo County: Minimum wage for tipped employees is $2.80 per hour plus tips to equal $11.50 per hour.
  • Las Cruces: Minimum wage for tipped employees is $4.60 per hour plus tips to equal $11.50 per hour.
  • City of Santa Fe: Minimum wage of $12.10 per hour. For tipped employees, $2.13 per hour plus tips to equal $11.80 per hour.
  • Santa Fe County: Minimum wage of $12.10 per hour. For tipped employees, $3.62 per hour plus tips to equal $12.10 per hour.

It is important for employers in New Mexico to ensure that they are compliant with local and state minimum wage increases, and to consult with a labor & employment attorney if they have any questions about the minimum wage in their area.

Healthy Workplaces Act

The Healthy Workplace Act was signed into law by Governor Grisham on April 7, 2021, requiring private employers to provide paid sick leave to all employees, whether the employees are full-time, part-time, seasonal, or temporary, at the employee’s usual hourly rate. This new law affects all New Mexico employers with at least one employee and will go into effect on July 1, 2022. NMSA 1978, §§50-17-1 to -12 (effective July 1, 2022).

Paid Sick Leave Accrual

Employees are allowed to accrue one hour of paid sick leave for every 30 hours worked, and employees may use up to 64 hours of paid sick leave in a 12-month period. See NMSA 1978, §50-17-3(A). The statute provides the employer may begin the 12-month period in a number of ways, including calendar year, fiscal year, or date of hire. See NMSA 1978, §50-17-3(B)(7). Employers are required to carry over any unused paid sick leave from year to year. However, employees are not entitled to use more than 64 hours of earned sick leave in a 12-month period unless the employer selects a higher annual limit. See NMSA 1978, §50-17-3(A), (B)(3).

Permitted Uses for Paid Sick Leave

Employees may use the paid sick leave for the following purposes:

  • The employee’s mental or physical illness, injury or health condition, medical diagnosis, care or treatment, or preventative medical care;
  • Care for the employee’s family members for mental or physical illness, injury or health condition, medical diagnosis, care or treatment, or preventative medical care;
  • Meetings at the employee’s child’s school or place of care related to the child’s health or disability; or
  • For absence needed as a result of domestic abuse, sexual assault, or stalking suffered by the employee or employee’s family member when the leave is to obtain medical or psychological treatment or other counseling, to relocate, to prepare for or participate in legal proceedings, or to obtain services to assist an employee’s family member with any of the above activities. See NMSA 1978, §50-17-3(C)

The Act broadly defines “family member” as the employee’s spouse or domestic partner, or a person related to the employee, spouse, or domestic partner as follows:

  • A biological, adopted, or foster child, a stepchild or legal ward, or a child to whom the employee stands in loco parentis;
  • A biological, foster, step, or adoptive parent or legal guardian, or a person who stood in loco parentis when the employee was a minor child;
  • A grandparent or grandchild;
  • A biological, foster, step, or adopted sibling;
  • A spouse or domestic partner of a family member; or
  • An individual whose close association with the employee or the employee's spouse or domestic partner is the equivalent of a family relationship. See NMSA 1978, §50-17-2(G)

There is not yet any direction provided to employers on how to determine whether an individual has a close enough association to be considered the equivalent of a family relationship. We anticipate guidance to be issued prior to the law taking effect in July 2022.

Requirements For Making Use of Paid Sick Leave

An employee, or an individual acting on the employee’s behalf, may request to take paid sick leave either verbally or in writing, and the employee should inform the employer in advance of the need for sick leave where foreseeable, as well as the expected length of the absence if possible. See NMSA 1978, §50-17-3(D), (E). Employers are not permitted to require documentation for sick leave, unless the employee uses two or more consecutive workdays of sick leave, in which case an employer may require that the employee provide “reasonable documentation” that the leave was used for a covered purpose. NMSA 1978, §50-17-5. The Act describes reasonable documentation as a signed note from a healthcare professional of the employee’s need for sick leave, or, in the event of domestic abuse, sexual assault, or stalking, “a police report, a court-issued document or a signed statement from a victim services organization, clergy member, attorney, advocate, the employee, a family member of the employee or other person affirming that the sick leave was taken for … [this] purpose.” Id. An employer may not require an employee who requests sick leave to find a replacement to cover the hours the employee will miss due to sick leave. NMSA 1978, §50-17-3(F).

Liability Under the Healthy Workplaces Act

The Act further describes actions that, if taken by the employer due to an employee taking sick leave, would constitute retaliation. See NMSA 1978, §50-17-8. These acts include taking or threatening to take adverse action as a result of taking sick leave, in order to deter an employee from taking sick leave, or as a result of an employee alleging violations of the Act or raising concerns about violations of the Act. Id. An employee’s use of sick leave cannot be counted against them toward any discipline, discharge, demotion, less favorable scheduling, reduction of hours, or other adverse employment action. Id.

Employees can bring civil actions against employers for violations of the Act. NMSA 1978, §50-17-10. While an employee can submit a complaint to the Department of Workforce Solutions, they are not required to do so prior to bringing suit. Id. Employees have three years from the date of any alleged violation of the Act to bring suit. Id. The statute also permits a civil action to be brought on behalf of the employee by specific third parties. Id. The legality of the employee’s presence in the country shall not be used as a defense to an alleged violation of the Act. Id.

Penalties Under the Healthy Workplaces Act

Employers face monetary penalties should they be found to have violated the Act.

  • In the event an employee is not compensated for sick leave, the employee could recover the greater of an amount equal to three times the wages that should have been paid, or $500. NMSA 1978, §50-17-11.
  • In the event an employer requires an employee to find a replacement for their missed hours, the employee could recover the greater of actual damages or $500.
  • If an employer is found to have retaliated against an employee, the employee could recover actual damages, including back pay, wages or benefits lost, an additional amount of $250, and rescission of disciplinary measures. Id. If the retaliation includes termination, the employee could also recover an additional amount of $500, and reinstatement.
  • For willful violations of record keeping requirements, the employee could recover $250.
  • For misclassification of employees as independent contractors, the employee could recover the greater of actual damages or $500.
  • In addition to these penalties, if an employer is found liable in a civil suit the employee is entitled to recover attorneys’ fees and costs.

Record Keeping Requirements

Employers are required to maintain records documenting employee’s worked hours and earned sick leave for the preceding 48 months, and to post notices of employees’ rights under the act in English, Spanish, and any language that is the first language spoken by at least ten percent of the employer's workforce. NMSA 1978, §50-17-7 and -6.

It is important for employers to note this law goes into effect on July 1, 2022, and to begin taking measures to ensure they are compliant with the Healthy Workplaces Act. Employers should consult with a labor & employment attorney if they have any questions about how to implement the required changes and record keeping requirements.

Tenth Circuit Court of Appeals Decision in Peterson v. Nelnet Diversified Sols.

New Mexico employers should also be aware of a recent Tenth Circuit Court of Appeals decision, holding that time devoted to booting up a work computer and launching certain software before clocking in is compensable under the Fair Labor Standards Act. Employers can learn more about this decision from Lewis Brisbois’ recent alert, “Tenth Circuit Reprograms FLSA Liability for Computer Boot-Up Time,” to ensure they are protecting themselves from potential liability.

For more information on any of these developments, contact the authors or editor of this alert. Visit our Labor & Employment Practice page for additional alerts in this area.

Authors:

Jessica D. Marshall, Partner

Elizabeth G. Perkins, Associate

Editor:

Ashleigh Reif Kasper, Partner

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