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New Mexico Employment Law Questions & Answers
1 Answer | Asked in Employment Law for New Mexico on
Q: My usual workday is 10 hours; 6am-4:30pm, the last two of which are overtime hours. The polling closes at 7pm.

Overtime is not mandatory so my employer says they can let me off at 2:30 in order to vote without paying my overtime. Overtime is scheduled all year. Are they right for letting me out early with no overtime pay?

Rhiannon Herbert
Rhiannon Herbert
answered on Nov 8, 2022

Federal law measures overtime hours according to a seven-day workweek rather than by the day. Any hours over and above 40 per seven-day workweek count as overtime hours. Thus, as long as you are properly paid overtime for all hours you work in excess of 40 per workweek, your employer is permitted... Read more »

1 Answer | Asked in Employment Law and Business Law for New Mexico on
Q: Can a non profit (501 (c)) offer in a contract to pay a percentage of the profits, thanks
Matthew Morris
Matthew Morris
answered on Aug 9, 2022

It depends. Because you tagged this question with both "business" and "employment," I'm assuming that the profit-sharing contract you are asking about is a contract with an employee of the nonprofit organization. If so, you are dealing with a question involving a topic that... Read more »

1 Answer | Asked in Employment Discrimination, Employment Law and Personal Injury for New Mexico on
Q: Was injured at work Nov 2020 but didnt do employee injury form. "Unpaid" medical leave as "5 hrs short.

Required surgery for herniated disc Jan 2021 & never fully recovered now need more. Given less physical job but am slower & 72 yrs old. Terminated Dec '21 as said no funding for my position. Just got a disqualification from NM Workforce Solutions as said i was per diem, ( statute... Read more »

Tim Akpinar
Tim Akpinar
answered on Mar 5, 2022

I'm sorry you were treated this way following your injuries. A New Mexico attorney could advise best, but your question remains open for two weeks. Ordinarily, injuries sustained in the course of employment should be covered by workers' comp. But I am not clear on your legal capacity here... Read more »

1 Answer | Asked in Employment Discrimination and Employment Law for New Mexico on
Q: Can an employer in New Mexico drop your hours from 37-38 a week to 30 hours a week because you were sick?
Kyle Anderson
Kyle Anderson
answered on Apr 7, 2021

Hi, more information is needed here. The employer can generally schedule you for as many or as little hours as it wants. However, if you have an employment contract, or the company did so because your sickness qualifies as a disability under the Americans with Disabilities Act, this may be unlawful.

1 Answer | Asked in Employment Law for New Mexico on
Q: Hrs of overtime are being taken for lunch hrs ..

How is it our overtime is taken for lunch hrs when regular hrs could be the source of deduction for lunch.

Rhiannon Herbert
Rhiannon Herbert
answered on Dec 23, 2020

If your lunch break lasts 30 minutes or longer, and if you do not perform any job duties during your lunch break, then your employer can deduct this break time from your pay. However, if you still work over 40 hours per 7-day workweek after the deduction for lunch break time, this time must be paid... Read more »

1 Answer | Asked in Employment Law for New Mexico on
Q: My employers check bounced, 2 years after she said she would resend i haven’t been paid. Can I file a lawsuit?

We had a verbal agreement that I would clean her house and she would pay me, in which she wrote me a check. The bank later sent me a letter in which the check had bounced. I contacted promptly, again almost 1 month after, and once more months afteR. Every time she said she would resend it but I... Read more »

Alex Sliheet
Alex Sliheet
answered on Oct 14, 2020

Sure you can file a lawsuit assuming the statute of limitations has not run.

But the type of lawsuit you would file depends on whether you actually are an employee or an independent contractor. What you and the lady subjectively decided does not determine the issue.

If your...
Read more »

1 Answer | Asked in Employment Law and Employment Discrimination for New Mexico on
Q: is it illegal to record your manager at work during a conversation between me and her in a federal building usps office
Kyle Anderson
Kyle Anderson
answered on Oct 8, 2020

Hi, it appears New Mexico is a one-party consent state. That means as long as one party to the conversation gives consent (which could be you), you can record the conversation. I would consult an attorney in your state before taking any action.

1 Answer | Asked in Employment Law and Health Care Law for New Mexico on
Q: Is non-compete enforceable?

I am an SLP who works for a company based out of state but I live in Albuquerque and work for APS through them. In a covenants/provisions clause of my contract, I am not to work for APS for 12 months after my contract expires. I feel this is unreasonable since APS is the only public school in the... Read more »

Kyle Anderson
Kyle Anderson
answered on Apr 29, 2020

Non-competes, generally speaking, are enforceable. There are factors a court takes into account to determine if they are too restrictive and thus, unenforceable. This varies state to state. I would recommend reaching out to an employment lawyer in your state for a consultation.

1 Answer | Asked in Employment Discrimination and Employment Law for New Mexico on
Q: Can i get a lawyer for a motel who doesnt give me any compensatiom for hours worked 70 hrs in a week all i get is a room
Deena L. Buchanan
Deena L. Buchanan
answered on Mar 1, 2020

Your employer must pay you at least minimum wage for all hours worked and overtime if you work more than 40 hours in a workweek and are non-exempt. It sounds like you may have a claim.

1 Answer | Asked in Employment Law and Elder Law for New Mexico on
Q: I HAVE BEEN WORKING FULL TIME FROM HOME FOR 6 MONTHS UNDER A DR'S CARE FOR A SUDDEN HEART PROBLEM.

I HAVE BEEN MEDICALLY RELEASED TO RETURN TO WORK. MY EMPLOYER TOLD ME I'M A LIABILITY AND FORBIDS ME TO RETURN TO THE OFFICE AS A OFFICE MANAGER. I HAVE NO IDEA IF HE IS GOING TO CONTINUE PAYING ME CONSIDERING EACH WEEK MY WORK HAS BEEN REDUCED AND GIVEN TO MY ASSISTANT WHO EARNS CONSIDERABLY... Read more »

Deena L. Buchanan
Deena L. Buchanan
answered on Jun 29, 2019

You should definitely reach out to a New Mexico employment lawyer about this. You are describing retaliation for taking leave for a serious medical condition, which is illegal under New Mexico law. While you have a smaller employer, New Mexico employment law protects employees as long as the... Read more »

1 Answer | Asked in Civil Litigation, Employment Law and Employment Discrimination for New Mexico on
Q: Do I have to sign a release of information for all former and any company I applied for since my constructive discharge?

Employment disability discrimination case in New Mexico. In the discovery phase, they are insisting that I sign a release of information for all former, even though I was employed by this company for 17 years, and all companies I applied since my constructive discharge. What relevance does any... Read more »

Deena L. Buchanan
Deena L. Buchanan
answered on Jun 29, 2019

Are you handling this case by yourself? If possible, I strongly urge you to consult with an attorney. Litigation is filled with these kinds of issues that can get your case dismissed if you don't handle them properly.

I believe you are asking about an employment information release....
Read more »

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,... Read more »

Trent A. Howell
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... 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
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
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.... Read more »

Trent A. Howell
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... 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
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... 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
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
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
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
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 »

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