Common Questions

General Questions

  • The usual, lawyer-like answer is, of course, “maybe.” Every lawsuit is like a three-legged stool – you need all three legs for it to work:

    • 1st leg – A legal, not just moral, wrong. Firing an at-will, excellent employee because of a personality conflict, may be unfair, but it’s probably not illegal. Bad management and stupidity aren’t illegal either.
    • 2nd leg – Damages. If an employee hasn’t lost wages, hasn’t incurred significant physical or emotional injuries, and the employer’s actions weren’t malicious or evil, the claim may not be worth pursuing. This is particularly so if the attorney is not entitled to fees from the defendant if the claim is pursued successfully.
    • 3rd leg – A source to pay any damages. If the employer goes bankrupt, any victory will be hollow – in more ways than one.

The term “employment law” generally refers to legal issues between an employer and its employee. The term “labor law” sometimes is used to deal more specifically with issues between union and management in those companies which have unions, although even non-union employees have some protections under federal labor laws.

An employee has rights as defined under state and federal law and the terms of any agreement between the employer and the employee.

New Mexico is called an at-will employment state. This means generally that an employee can be fired at any time for any reason – with some exceptions.

  • There are basically three exceptions:

    • First, an employee cannot be fired in violation of any specific federal or state civil rights or other law which may affect the employment relationship.
    • Second, an at-will employee cannot be fired if he or she did something which public policy supports or because the employee refused to do something public policy would condemn. This is also called a wrongful or retaliatory discharge.
    • The third exception to the at-will rule occurs when there is a written or oral agreement or contract between the employer and the employee which provides the employee can be fired only for a good cause or only according to a specific procedure, like a progressive disciplinary policy. This contract can be an explicit (for example, a written agreement signed by the employee and the employer) or implied (for example, an employee handbook).

Court decisions have not limited public policy to a prohibition or a mandate found specifically in the state constitution or even in a statute passed by the legislature. Judicial decisions may also constitute public policy. The problem, of course, is that the term remains amorphous and vague. New Mexico courts have found that the misuse of public money, refusal to commit a crime or perjury, the reporting of violations of OSHA safety standards, cooperation in criminal investigations and exposure of crime are all public policies, and employees engaged in those activities were protected. Other actions have been held not to violate public policy. Using an employer’s grievance procedures, violating company policy, and acting in a manner which benefits only the employee complaining were held not to be protected activities.

Under federal and state law, an employer cannot discipline or fire an employee on the basis of race, sex, national origin (for example, being Hispanic), age, disability (or a serious medical condition under state law), religion and a few other criteria. An employer also cannot harass an employee because of any of these criteria. For example, an employer cannot create or allow the creation of a hostile work environment based on an employee’s sex or race. Finally, an employer cannot retaliate against an employee who asserts rights or files a complaint based on a reasonable belief that he or she has been discriminated against on one of the protected criteria.

  • Title VII of the federal Civil Rights Act of 1964, forbids discrimination on the basis of race, sex, natural origin, religion, and some other categories.
  • The Pregnancy Discrimination Act is an amendment to Title VII and outlaws discrimination on the basis of pregnancy, childbirth or related medical conditions. Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.
  • The Age Discrimination in Employment Act of 1967 (ADEA) prohibits discrimination against people 40 years and older.
  • The Americans with Disabilities Act (ADA) forbids discrimination on the basis of disability. As mentioned in the sections in the preface to the disability questionnaire and as shown in the disability questionnaire itself, definitions are unique to this particular statute.
  • The Vocational Rehabilitation Act of 1973 outlaws discrimination against the disabled by an employer who receives federal financial assistance.
  • The Equal Pay Act forbids sex-based wage discrimination for men and women who perform substantially equal work.
  • The Employee Retirement Income Security Act (ERISA) makes illegal certain activities by employers regarding pension plans and employee benefit plans. For example, if an employee is denied benefits under a group long-term disability plan, ERISA sets out the standards for determining whether there has been an illegal denial. If a company decided to fire a person because her family’s medical bills were causing the employer’s group health insurer to drop the company, then these employees would have an ERISA claim.
  • The Family and Medical Leave Act (FMLA) provides that eligible employees may take up to twelve weeks of unpaid, job-protected leave (for a one-year period) for birth and care of child; placement of child for adoption or foster care; care of a spouse’s, child’s or parent’s serious health condition or employee’s own serious health problem.
  • Pursuant to COBRA most fired employees and their beneficiaries are entitled to continue health insurance coverage, but at full premium cost.

Check our “Links” section to get more details on these different laws.


  • The New Mexico Human Rights Act incorporates the provisions of Title VII, the ADEA and the ADA, making the same actions illegal as a matter of state law. The Human Rights Act expands on the ADA by also making it illegal to discriminate against an employee who has a “serious medical condition.” The statute applies to employers with at least four employees. Due to more recent changes, the Act forbids employment discrimination on the basis of sexual orientation or gender identity if there are at least fifteen employees.

    Besides this general “civil rights” statute, New Mexico has also passed other laws which focus on particular kinds of discrimination, or which specifically regulate some aspect of the employer-employee relationship:

    • The Human Immuno-Deficiency Virus Test as a Condition of Employment. An employee can’t be forced to disclose HIV/AIDS test as a condition of “hiring, promotion or continued employment” unless there is a legitimate reason for doing so.
    • Workers’ Compensation Retaliation Against Employee Seeking Benefits. Employer shall not fire or otherwise retaliate against worker because he or she sought workers’ compensation benefits.
    • Blacklisting. Employer or agent may not prevent or attempt to prevent a former employee from obtaining other employment, but “may give an accurate report or honest opinion of the qualifications and the performance of a former employee.”
    • Unlawful Coercion of Employees. Employer may not coerce directly or indirectly an employee to “buy goods or trade with any particular store, business or person.”
    • Labor Conditions in Employment. When wages due, hours of employment, minimum wage, etc.
    • Employment of Women. Sets requirements and restrictions on women employees – hours worked, etc. (probably unconstitutional)
    • Occupational Safety and Health Reform Act. Employer must furnish place of employment free from recognized hazards likely to cause death or serious physical harm.
    • Coercion of Employees. Another statute forbids the termination of an employee because of political beliefs, opinions or the employee’s intention to vote or not to vote.
    • Employer Prohibited from Penalizing. An employee can’t be fired if he or she responds to a summons or serves as a juror.

Common law is judicial, or court-made, law. That is, it is law made by the courts, and not by the legislature or by a governor’s exective order. Besides serving as a basis for “public policy,” an employee can have other claims derived from common law.

  • Along with most other states, New Mexico has recognized the civil wrong of invasion of privacy, that is invading an employee’s right to be left alone. There are basically three different kinds of invasion:

    • Intrusion into an employee’s physical solitude, seclusion or private affairs.
    • Publicity of a highly objectionable kind giving private information about an employee, even though it is true.
    • Publicity which places an employee in false light in the public eye.
    • Disseminating information about an employee’s medical condition, or disseminating information from files which the employer has declared are private and confidential could all constitute invasion of privacy.

Defamation is a wrongful injury to a person’s reputation by communicating a statement of fact which is false. Defamation can be either written (libel) or oral (slander). Opinions are not defamation and there are other exceptions or privileges, for example, giving your opinion of an ex-employee’s work at the request of a prospective employer. Characterization is key. “We thought the employee was not always careful in documenting his daily receipts” vs. “The employee stole $500.00.”

The intentional or reckless infliction of emotional distress (also known as the tort of “outrage”) alone can create liability. An employee must show the defendant’s conduct was extreme and outrageous and was done with the intent to cause severe emotional distress. Extreme and outrageous conduct is defined as conduct beyond all possible bounds of decency, “regarded as atrocious, and utterly intolerable in a civilized community.” Again, there might be general agreement on what is outrageous, but applying that concept to specific facts can create interesting court decisions. For example, a doctor’s false and intentional entry in a hospital record can create a claim for outrage. Derogatory use of the word “Mexican” may be the intentional infliction of emotional distress as well as defamation. Dominguez v. Stone, 79 N.M. 211 (Ct. App. 1981).

Due process is a concept found in the United States and New Mexico constitutions, and the constitutional protections do not apply to private employers and their employees. A private employer is an employer other than federal, state, city or other local government. Intel, Sandia National Laboratories, Honeywell and other similar companies (large or small) are private companies, even if they receive some monies from the government. Someone working for a private employer would not be able to allege a complaint for a violation of constitutional rights because the Constitution does not apply to a private employer. However, many employers do attempt to incorporate due process principles in employee handbooks or in procedures for performance and disciplinary matters.

Harassment - Hostile Work Environment

State and federal law prohibit sexual discrimination, and sexual harassment is a form or a type of sexual discrimination. The law prohibits harassment in employment even if there is no direct financial harm.

If there is no economic injury, the unwelcome conduct must be severe and pervasive; it alters the condition of the victim’s employment. To determine whether the words and actions meet the criteria of a hostile work environment, courts look at the frequency of the conduct, the severity, whether it unreasonably interfered with work performance, whether it was physically threatening or humiliating. The impact of the victim’s psychological well-being may also be considered. Courts have held that trivial offenses and merely offensive words are insufficient to constitute a hostile work environment.

Not to sound flip, but probably more than you think in light of the court decisions. We can show you a lot of decisions where what you and I might think is harassment is dismissed by a court as being merely a trivial offense or “boorish” behavior. A few incidents over a few weeks or months probably won’t be a hostile work environment. A single sexual assault could constitute a hostile work environment, but the assault probably has to result in some kind of physical, as well as psychological, injury. The alleged behavior by ex-President Clinton with Paula Jones in a hotel room in Little Rock was not considered by the federal judge there to constitute sexual harassment.

If the harassment is by a supervisor with immediate or higher authority over the employee, and there has been a tangible employment action (a suspension, demotion, termination, etc.), the employer is stuck. If, however, there was no tangible employment action, the employer can avoid liability by showing that it exercised reasonable care to prevent and correct promptly any harassing behavior and also that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer (such as a anti-harassment policy). If the employee is a co-worker, the courts have established a negligence standard; that is, whether or not the employer (supervisors with authority) knew or should have known about the harassment and took no action to prevent it. The bottom line is that if there has been no tangible employment action, and the employer exercised reasonable care to prevent sexual harassment and then corrected promptly any harassing behavior, there probably isn’t a strong hostile work environment claim against the employer.

First of all, see if your company has a written policy or procedure about harassment and the steps to be taken if harassment occurs. Follow that procedure. We speak to a lot of clients who have waited too long to report their harassment and have given the employer an out by allowing it to claim that no earlier action was taken because the employer was unaware of the behavior. Once, however, the harassment was reported, the employer immediately put a stop to it.

The employer’s only obligation is to stop the harassment once it’s made aware of the harassment. It has no obligation to fire an employee (although based on other concerns, it may do so), or to transfer the employee. It is not unusual, however, for the employer to move the alleged harasser pending some kind of investigation in order to avoid problems.

It does. If words and actions rising to the level of a hostile work environment because of a person’s race, national origin, age, disability and probably other conditions or characteristics protected by federal and state civil rights laws occur, then there may be a claim using a similar analysis as set out in the cases involving a hostile work environment based on sex.

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Steven Granberg

Gail Stewart