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Questions Answered by Trent A. Howell

1 Answer | Asked in Employment Law and Sexual Harassment for New Mexico on

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

He says " get out of you don't like it! Drops insulting and unprofessional words during training of new employees. Is very crude and upsetting to this female employee What do I do? I consider this a very hostile workplace. He is offensive and disrespectful during meetings, training, and... Read more »

Trent A. Howell answered on Mar 6, 2018

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:... Read more »

1 Answer | Asked in Employment Law for New Mexico on

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

The withholding is due to an error made by employee at agency's expense and was clearly an act of incompetence to the duties/responsibilities of the position.

Trent A. Howell answered on Mar 6, 2018

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.

1 Answer | Asked in Employment Law, Civil Rights and Employment Discrimination for New Mexico on

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

Feel my manager is attacking me after I went to upper management about scheduling. Caused me to be out of work for 3 weeks

Trent A. Howell answered on Mar 6, 2018

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... Read more »

1 Answer | Asked in Employment Law, Employment Discrimination and Civil Rights for New Mexico on

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

going to hire me because he works there also. Pretty much he doesn't hire couples. But, the same guy hired a husband and wife couple, they work the same shifts. He also hired a BF/GF couple. Now, both of those couples are Indonesian. The owner himself is Chinese. I am Native as is my partner. Does... Read more »

Trent A. Howell answered on Mar 6, 2018

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... Read more »

1 Answer | Asked in Employment Law, Family Law and Juvenile Law for New Mexico on

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

I would like to know what rights as the parent I have when my child, who is 16, is working.

Trent A. Howell answered on Oct 31, 2017

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... Read more »

1 Answer | Asked in Employment Law for New Mexico on

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

I live in New Mexico. I was fired last October due to a felony allegation. Now the allegation has been fully dismissed.

Trent A. Howell answered on Oct 31, 2017

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... Read more »

1 Answer | Asked in Employment Law and Employment Discrimination for New Mexico on

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.

I have been on FMLA the last three years. I have a new supervisor that did not explain to me that my FMLA needed to be redone in order for me to have it again. For some reason when I went to do all my paperwork there were more added steps that were not required the previous years and I kept... Read more »

Trent A. Howell answered on Oct 31, 2017

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... Read more »

1 Answer | Asked in Employment Law for New Mexico on

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

I work for an at will employer worked for 25 hours that I did not receive on my latest pay check, and no-one can tell me why or when I will be paid. I've contacted district manager project manager regional manager and hr with no response.

Trent A. Howell answered on Oct 31, 2017

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... Read more »

1 Answer | Asked in Employment Law for New Mexico on

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

My job has for the past month reduced the amount of employees and has been adding new responsibilities and new tasks to the job without any form of compensation

Trent A. Howell answered on Oct 31, 2017

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... Read more »

1 Answer | Asked in Employment Law for New Mexico on

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

This is a government contract. The company is based out in Virginia. Contract is in Las Cruces, NM.

Trent A. Howell answered on Oct 31, 2017

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... Read more »

1 Answer | Asked in Business Law, Employment Discrimination and Employment Law for New Mexico on

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

Giant #6338 Western Refining/andeavor

Trent A. Howell answered on Oct 31, 2017

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...
Read more »

1 Answer | Asked in Employment Law and Real Estate Law for New Mexico on

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

The principal says I have to come in and hold an IEP meeting before getting my check. School ended on May 23rd and our Special ed coordinator closed down our files on the 24th.

Trent A. Howell answered on Oct 31, 2017

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... Read more »

1 Answer | Asked in Employment Law and Workers' Compensation for New Mexico on

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

I have 200 hrs vacation and 24 hrs sick leave saved up. My employer is a small business (5 employees) in new mexico that has recently downsized dramatically from financial issues (debts). ive been with him for over 6 yrs. I recently got sick for two days from an E coli outbreak in the cities water... Read more »

Trent A. Howell answered on Oct 31, 2017

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... Read more »

1 Answer | Asked in Employment Law for New Mexico on

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

Trent A. Howell answered on Oct 31, 2017

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... Read more »

1 Answer | Asked in Employment Law for New Mexico on

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

I injured my back at work and was giving a few days off. I live next to the bistro I worked in so I stopped by the next day on my way to the store and was asked to purchase a pack of cigarettes for a fellow employee. After delivering the cigarettes I returned home. I was then fired that night, on... Read more »

Trent A. Howell answered on Oct 31, 2017

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... Read more »

1 Answer | Asked in Business Law and Employment Law for New Mexico on

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

It sounds ridiculous to me, but someone has told me that it's illegal to allow independant contractors (massage therapists in this case) to wear t-shirts with the logo of the company that has hired them. The t-shirts are worn at events voluntarily by the contractors to help advertise for the... Read more »

Trent A. Howell answered on Aug 3, 2016

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... Read more »

1 Answer | Asked in Employment Discrimination for New Mexico on

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???

I read NM laws and in NM I would be considered 4th relative which is not immediately family and would not stop me from being considered for the position. Would the federal law have anything different in this case?? I want to make a complaint but am unsure if is would be considered under EEOC? Thank... Read more »

Trent A. Howell answered on Apr 14, 2016

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... Read more »

1 Answer | Asked in Employment Law for New Mexico on

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

I walked out one day after being at my job for 5 years. My boss would always say how she has the right to lower our pay to minimum wage if we Dont give a two week notice. I live in alb nm

Trent A. Howell answered on Apr 14, 2016

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... Read more »

1 Answer | Asked in Employment Law for New Mexico on

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

The program participants spend 3/4 of their time in a classroom setting the remainder is job shadowing. The duration of the program is approximately for six weeks (last two weeks of June and all of July)

Trent A. Howell answered on Apr 14, 2016

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:... Read more »

1 Answer | Asked in Employment Law for New Mexico on

Q: How far back do background checks go?

Trent A. Howell answered on Apr 14, 2016

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... Read more »

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