New Mexico Legislative Recap

The 2019 legislative session saw a lot of activity in New Mexico. Several-employment related bills passed and were signed into law. We will highlight four of these laws which made significant changes that apply to most employers: (1) Minimum wage increase; (2) amendments to the human rights act; (3) medical marijuana and employment; and (4) the “Criminal Offender Employment Act.”

Minimum Wage Increase

The phased increase to minimum wage was signed into law. It is the first increase to the statewide minimum wage since 2009 when the minimum wage was raised to $7.50. This law will phase in the increase over time. The minimum wage will rise in each of the next three years until it reaches $12.00 per hour. The increases will be between $1 per hour and $1.50 per hour:

  • $9.00 per hour effective January 1, 2020
  • $10.50 per hour effective January 1, 2021
  • $11.50 per hour effective January 1, 2022
  • $12.00 per hour effective January 1, 2023

All employers must post the New Mexico minimum wage poster. Therefore, employers should make sure they are paying the appropriate minimum wage and make sure that their minimum wage posters reflect the current minimum wage.

Amendments to the Human Rights Act

The New Mexico Human Rights Act prohibits discrimination in employment. Employers with four or more employees are covered by this law. The law prohibits discrimination because of race, age, religion, color, national origin, ancestry, sex, physical or mental handicap, or serious medical condition. Previously, sexual orientation and gender identity discrimination only applied to employers with 15 or more employees. The amendment added sexual orientation and gender identity to the list of protected classes covered by employers with four or more employees.

In essence, this new law amended the Human Rights Act to lower the employee count needed to proceed on a sexual orientation and gender identity discrimination charge. This brought sexual orientation and gender identity discrimination in line with all other protected classes in the New Mexico Human Rights Act.

Medical Marijuana and Employment

This new law made it unlawful to take an adverse employment action against an applicant or an employee based on conduct allowed under the Lynn and Erin Compassionate Use Act (New Mexico Medical Marijuana law). There were a few exceptions to this prohibition. Specifically, an employer can take adverse employment action for use of medical marijuana when:

  1. A failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations;
  2. The use of, or being impaired by, medical cannabis occurs on the premises of the place of employment or during the hours of employment; or
  3. The employee works in a safety-sensitive position.

With regard to the second exemption (on-duty or on-premises use), please note that marijuana stays in a person’s system for up to 30 days. Consequently, a positive test for marijuana does not conclusively show when the marijuana was used. In practice, this means that random drug tests that are positive for marijuana likely cannot lead to adverse employment action if the employee is using marijuana under the Lynn and Erin Compassionate Use Act. Therefore, it would be good practice to base marijuana drug tests on reasonable suspicion and actual conduct that occurred on duty. This way, the employer can show both the results of the drug test and the conduct at work to justify any adverse employment action.

Criminal Offender Employment Act

Employers cannot ask about an applicant’s criminal history (arrest or conviction) in any written or electronic employment application. This law limits what can be asked in an initial application. It does not prohibit asking about criminal history in a later interview nor does it prohibit the use of background checks. New Mexico along with a number of other states have passed laws relating to questions about applicants’ criminal histories. These are often referred to as “ban the box” laws. One theory behind these laws is to encourage applicants with criminal histories to apply for jobs. It is believed that by removing these questions from the initial application, more people with criminal histories will apply and be selected for jobs.

Employers Council has attorneys licensed to practice in New Mexico and can assist on questions regarding these and all New Mexico employment-related laws. For questions on these or any other law, or to access updated resources such as forms, contact Employers Council.