hire
Advertising
What are the requirements relating to advertising open positions?
NMSA § 28-1-7(D) makes it unlawful for any state employer to advertise any statement, use any form of application, or make any inquiry regarding the applicant’s membership in a protected class under the New Mexico Human Rights Act or that expresses any limitation or discrimination based on a protected class; for employers with fifty or more employees, the prohibition is extended to spousal affiliation.
Background checks
(a) Criminal records and arrests
New Mexico has a “ban the box” requirement, prohibiting employers from asking about an applicant’s arrest or conviction history. NMSA §28-2-3 et seq. Employers are permitted to consider an applicant’s conviction record and are allowed to disqualify applicants for “particular positions” under employer policy if the applicant has “a certain criminal history.”
(b) Medical history
Under NMSA § 24-21-4(D), it is unlawful to use genetic information in employment decisions.
Under NM Stat. ann. § 28-10A-1 it is unlawful to require disclosure of the results of a human immunodeficiency virus related test.
A number of definitions for the state’s disability and medical condition protections are defined in New Mexico regulations (NMAC 9.1.1.7 (R, S, V, X, Z)).
(c) drug screening
New Mexico has no statute regulating drug testing employees or applicants.
(d) Credit checks
New Mexico has no credit check statute.
(e) immigration status
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)).
(f) social media
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).
(g)Other
None.
Wager and hour
Pay
What are the main sources of wage and hour laws in your state?
NMSA § 50-4-1 and following.
What is the minimum hourly wage?
In 2022, the minimum wage is $11.50 per hour and increases to $12 per hour on January 1, 2023 (2019 NM Laws Ch. 114, § 2(A)). For tipped employees who customarily and regularly receive more than $30 a month in tips, employers may pay a lower hourly rate, as long as the total received is at least the state minimum wage per hour. The hourly rate payable to tipped employees is $2.80 in 2022 and $3 per hour in 2023 (2019 NM Laws Ch. 114, § 2(D)). New Mexico has different minimum wage rules for students enrolled in secondary school (2019 NM Laws Ch. 114, § 2(B)).
Local variations
The cities of Santa Fe, Albuquerque, and Las Cruces, as well as the counties of Santa Fe and Bernalillo, have minimum wage rates higher than the state minimum wage
What are the rules applicable to final pay and deductions from wages?
If discharged by the employer, an employee’s unpaid wages must be paid within five days of the discharge (NMSA § 50-4-4(A)). Otherwise, the final paycheck must be issued within 10 days of the discharge (NMSA § 50-4-4(B)).
If an employee resigns employment, the final payment for wages or compensation must be paid no later than the next payday (NMSA § 50-4-5). Wage disputes are addressed in NMSA § 50-4-7.
NMSA § 50-4-2(B) regulates deductions.
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?
No employee may 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 work in emergency situations, or farm or ranch hands whose duties require them to work longer hours (NMSA §50-4-30).
The number of hours that children between the ages of 14 and 16 may work is also restricted (NMSA § 50-6-3).
How should overtime be calculated?
Overtime must 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?
NMSA § 50-4-21 excludes several classes of employees from overtime coverage, including:
- individuals in certain executive, administrative, superintendent, and supervisor roles (NMSA § 50-4-21(C)(2), NMAC 11.1.4.7(F));
- some volunteers of non-profit organizations (NMSA § 50-4-21(C)(4));
- persons compensated on a piecework, flat-rate schedule, or commission basis (NMSA § 50-4-21(C)(5));
- students regularly enrolled in primary or secondary schools (NMSA § 50-4-21(C)(6));
- registered apprentices and learners (NMSA § 50-4-21(C)(7));
- persons aged 18 or under who are not students (NMSA § 50-4-21(C)(8)) or who are not graduates of a secondary school (NMSA § 50-4-21(C)(9));
- GI Bill trainees while under training (NMSA § 50-4-21(C)(10)); other
- certain specified employees in the agriculture and horticulture industry (NMSA § 50-4-21(C)(12-13)).
NMSA § 50-4-24 provides for additional exemptions from overtime, including certain agricultural workers and employees of air carriers subject to the FRLA.
Record keeping
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 (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).
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