Questions Answered by Trent A. Howell

Q: My employer condones and actively participates in foul language when addressing me as a female employee.

1 Answer | Asked in Employment Law and Sexual Harassment for New Mexico on
Answered on Mar 6, 2018
Trent A. Howell's answer
Depending on the circumstances, a "hostile environment" can amount to discrimination under the New Mexico Human Rights Act (“NMHRA”), NMSA § 28-1-1 et seq., and/or Title VII. In Ocana v. American Furniture Co., 135 N.M. 539, 91 P.3d 58, 66 (2004), the New Mexico Supreme Court explained:

sexual harassment is actionable under a hostile work environment theory when the offensive conduct becomes so severe and pervasive that it alters the conditions of employment in such a manner that...

Q: Can I withhold money from a terminated employees final paycheck?

1 Answer | Asked in Employment Law for New Mexico on
Answered on Mar 6, 2018
Trent A. Howell's answer
In general, NM Stat § 50-4-2 (2016) limits the extent and manner in which an employer can withhold earned pay from employee paychecks.

This is not legal advice to you, but a general idea of the law. Whether and how it applies to you would depend on the details of your employment.

Q: I think I am being retaliated against by my pharmacy manager because I went to upper management about her.what can I do

1 Answer | Asked in Employment Law, Civil Rights and Employment Discrimination for New Mexico on
Answered on Mar 6, 2018
Trent A. Howell's answer
A number of statutes prohibit public and privates employers from retaliating against employees for making certain types of internal complaints. Two statutes commonly involved with such claims are the New Mexico Human Rights Act (“NMHRA”), NMSA § 28-1-1 et seq. and the New Mexico Whistleblower Protection Act (“NMWPA”), NMSA § 10-16C-1 et seq.

This is not legal advice to you, but a general idea of the law. Whether and how it applies to you would depend on the details of your...

Q: I applied at a restaurant a few weeks back. My partner works there too. The owner told my partner that he wasn't

1 Answer | Asked in Employment Law, Employment Discrimination and Civil Rights for New Mexico on
Answered on Mar 6, 2018
Trent A. Howell's answer
In certain situations, New Mexico Human Rights Act ("NMHRA"), NMSA § 28-1-1 et seq., requires an employer to consider an applicant for a position regardless of "spousal affiliation" or sexual orientation. In addition, if the employer retains some employees and terminates others based on their "couple" status, there may be a question of whether the employer is applying this standard in a discriminatory way.

This is not legal advice to you, but a general idea of the law. Whether and...

Q: My child is 16 and working at McDonalds... as his parent can I request to see his work schedule?

1 Answer | Asked in Employment Law, Family Law and Juvenile Law for New Mexico on
Answered on Oct 31, 2017
Trent A. Howell's answer
This is a great question. In general, child laborers 16 and over are not subject to special "work permit" (and associated approval and record) requirements in New Mexico. See, e.g., NM Stat § 50-6-2 (2007). However, because a 16 year old is still a "minor" under New Mexico law, (a) any employment agreement with the child is voidable as a matter of law, and (b) the parent of the child holds the power to sue on behalf of the child. So there are reasons an employer may honor a parent's...

Q: I'm just wondering if I have a case for wrongful termination against my former employer? thank you.

1 Answer | Asked in Employment Law for New Mexico on
Answered on Oct 31, 2017
Trent A. Howell's answer
In general, there is no law against an employer terminating employees for felony allegations, regardless whether they result in conviction. However, if the employer retains some employees and terminates others for have felony allegations, there may be a question of whether the employer is applying this standard in a discriminatory way.

This is not legal advice to you, but a general idea of the law. Whether and how it applies to you would depend on the details of your employment.

Q: I was sent a proposed removal from the VA. I need to know what my rights are if any? I have had no prior write ups.

1 Answer | Asked in Employment Law and Employment Discrimination for New Mexico on
Answered on Oct 31, 2017
Trent A. Howell's answer
In general, an employer must provide certain notices and responses to employees regarding FMLA leave. See, e.g., https://www.dol.gov/whd/regs/compliance/whdfs28d.pdf . In addition, it is unlawful and gives rise to a particular cause of action if the employer terminates an employee in retaliation for exercising or attempting to exercise FMLA rights. See, e.g., 29 U.S. Code § 2615 and § 2617.

This is not legal advice to you, but a general idea of the law. Whether and how it applies...

Q: What is a " timely manner"? If still employee with the company.

1 Answer | Asked in Employment Law for New Mexico on
Answered on Oct 31, 2017
Trent A. Howell's answer
In general, an employer must, on regular, bi-monthly paydays, fully pay employees for all work done within the prior two weeks. NM Stat § 50-4-2 (2015). If the employee is discharged, the employee must make the payment within five days of the discharge. NM Stat § 50-4-4 (2015). If the employee quits, the employer must make the payment by the next regular payday after the employees quits. NM Stat § 50-4-4 (2015). If the employer fails to do so, there may be penalties.

This is not...

Q: In New Mexico can an employer add responsibilities to an employee without compensation

1 Answer | Asked in Employment Law for New Mexico on
Answered on Oct 31, 2017
Trent A. Howell's answer
In general, unless the employer has entered an agreement to continue a rate of pay or benefits for a certain period as to a certain job description and responsibilities, an employer can change the rate of pay, benefits, and job description and responsibilities going forward. This is not legal advice to you, but a general idea of the law. Whether and how it applies to you would depend on the details of your employment.

Q: If you are placed on a permanent night shift does your employer have to pay you shift differential?

1 Answer | Asked in Employment Law for New Mexico on
Answered on Oct 31, 2017
Trent A. Howell's answer
In general, unless the employer has entered an agreement to continue a rate of pay or benefits for a certain period as to a certain job description and duties, an employer can change the rate of pay, benefits, and job description and duties going forward. However, you mention this "is a government contract," and sometimes such contracts and/or related documents require certain pay for certain positions. This is not legal advice to you, but a general idea of the law. Whether and how it applies...

Q: Can my employer make me pay for something as pretty as a broken liquor bottle?

1 Answer | Asked in Business Law, Employment Discrimination and Employment Law for New Mexico on
Answered on Oct 31, 2017
Trent A. Howell's answer
In general, New Mexico "tort"/"negligence" law makes a person liable to anyone whom he causes accidental damage - whether at work, or anywhere else. Whether it is worth anyone's time to file or fight a lawsuit over a broken liquor bottle is a different question.

This is not legal advice to you, but a general idea of the law. Whether and how it applies to you would depend on the details of your employment.

Q: What do I do if I am a first year teacher and my principal is refusing to give me my final paycheck?

1 Answer | Asked in Employment Law and Real Estate Law for New Mexico on
Answered on Oct 31, 2017
Trent A. Howell's answer
In general, an employer must, on regular, bi-monthly paydays, fully pay employees for all work done within the prior two weeks. NM Stat § 50-4-2 (2015). If the employee is discharged, the employee must make the payment within five days of the discharge. NM Stat § 50-4-4 (2015). If the employee quits, the employer must make the payment by the next regular payday after the employees quits. NM Stat § 50-4-4 (2015). If the employer fails to do so, there may be penalties.

This is...

Q: my employer is having financial troubles and has took away my vacation & sick leave. what are my options? legal?

1 Answer | Asked in Employment Law and Workers' Compensation for New Mexico on
Answered on Oct 31, 2017
Trent A. Howell's answer
In general, for work already done, an employer must pay whatever rate of pay and benefits were agreed upon before the work was done. Unless the employer has also entered an agreement to continue a rate of pay or benefits for a certain period of time into the future, an employer can change the rate of pay and benefits going forward (but in no case decrease the amount below any applicable minimum wage). This is not legal advice to you, but a general idea of the law. Whether and how it applies to...

Q: I work as a store manager for an automotive parts company does the salary go by new law of 913 a week minimum.

1 Answer | Asked in Employment Law for New Mexico on
Answered on Oct 31, 2017
Trent A. Howell's answer
While there have been recent bills in the New Mexico Senate and House of Representatives to raise it, in general, the state-wide minimum wage by state law is still $7.50 per hour. NM Stat § 50-4-22 (2016). But some cities (e.g., Albuquerque, Las Cruces, and Santa Fe) impose a higher minimum wage by local ordinance. Whether and how these apply to you would depend on the details of your employment.

Q: I was fired the day after a work related injury on a false accusation. Can I file a lawsuit?

1 Answer | Asked in Employment Law for New Mexico on
Answered on Oct 31, 2017
Trent A. Howell's answer
There is a statute prohibiting employers from terminating employees "for the sole reason that that employee seeks workers' compensation benefits." New Mexico Workers’ Compensation Retaliation Statute, NMSA § 52-1-28.2. Whether and how it applies to you would depend on the details of your employment.

Q: In NM, is it legal to allow independant contractors to wear the business logo of the company that hires them?

1 Answer | Asked in Business Law and Employment Law for New Mexico on
Answered on Aug 3, 2016
Trent A. Howell's answer
Someone is confusing the issue. The question is not whether it is "legal," but whether wearing a company logo may suggest an individual is an employee rather than an independent contractor of that company. There are different definitions and factors to determine "employee" status under different statutes. For example, the IRS has a 20-factor test, and courts consider several other factors under the FLSA (federal minimum wage law). Wearing a company logo, alone, is not enough to make someone...

Q: I applied for job at a FQHC clinic in nm. They are saying they can't hire me because my great uncle is a board member???

1 Answer | Asked in Employment Discrimination for New Mexico on
Answered on Apr 14, 2016
Trent A. Howell's answer
An entity that is a “Federally Qualified Health Center” (FQHC) under Medicare and Medicaid statutes operates under certain federal regulations that may prohibit certain conflicts of interest, which may include nepotism in certain situations. Whether those regulations apply to you would depend on the details of the clinic and the potential workplace interactions between yourself and your great uncle. EEOC generally would not be involved in such a situation, unless you could demonstrate the...

Q: I quit my job does my ex boss have the right to pay me minimum wage even though I made more than that

1 Answer | Asked in Employment Law for New Mexico on
Answered on Apr 14, 2016
Trent A. Howell's answer
In general, for work already done, an employer must pay whatever rate of pay was agreed upon before the work was done. Unless the employer has also entered an agreement to continue a rate of pay for a certain period of time into the future, an employer can change the rate of pay going forward, but in no case decrease the amount below any applicable minimum wage. This is not legal advice to you, but a general idea of the law. Whether and how it applies to you would depend on the details of...

Q: It is allowed to pay youth participants in summer youth program stipends vs an hourly wage.

1 Answer | Asked in Employment Law for New Mexico on
Answered on Apr 14, 2016
Trent A. Howell's answer
Depending on the nature and size of the employer, this question may involve both federal and state law. As to New Mexico law, the local agency responsible for enforcing minimum wage laws has posted some helpful information on its website: http://www.dws.state.nm.us/Job-Seeker/Career-Exploration/Internships/Internship-FAQs

Q: How far back do background checks go?

1 Answer | Asked in Employment Law for New Mexico on
Answered on Apr 14, 2016
Trent A. Howell's answer
In addition to limitations under the federal Fair Credit Reporting Act, New Mexico Statute Section 56-3-6 generally places some limits on the information "credit bureaus" can list, such as limiting reporting of bankruptcies to no longer than 14 years, collection accounts no longer than 7 years, and arrest and convictions no longer than 7 years.

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