NOTE: This article was updated March 21, 2020.

New Mexico has been making waves with several noteworthy labor and employment developments. This Lightbulb will highlight interesting legal quirks in the Land of Enchantment, along with recently enacted legislation. The Littler Albuquerque office will be carefully monitoring these, and other state and local, issues as they unfold.

• Restricting Nondisclosure Agreements. On March 4, 2020, Governor Lujan Grisham signed HB 21, which voids confidentiality provisions in settlement agreements relating to claims of sexual harassment, discrimination or retaliation in the workplace. Under the measure, a confidentiality provision will be permitted in such situations only if: “(1) it relates to the monetary amount of the settlement; or (2) at the employee’s request, it prohibits disclosure of facts that could lead to the identification of the employee.” HB 21 will apply to agreements between private employers and current or former employees executed on or after May 20, 2020. 

• The “Red Flag” Gun Law: On February 25, 2020, Governor Michelle Lujan Grisham signed SB 5, the Extreme Risk Firearm Protection Order Act. This “red flag” law, which takes effect May 20, 2020, allows a court to issue a protection order (PO) requiring an individual to turn over their firearms and forbidding the purchase or attempted acquisition of a firearm. Although PO petitions must be filed by law enforcement officers, the new law authorizes certain family members and others—including employers—to request a PO and provide evidence. Law enforcement must file a petition for a PO “upon receipt of credible information . . . that gives the agency or officer probable cause to believe that a [person] poses a significant danger of causing imminent personal injury to self or others by having in [their] custody or control or by purchasing, possessing or receiving a firearm.” If the court finds probable cause based on the petition, it must issue a temporary PO and conduct a hearing within 10 days. If, after the hearing, the judge finds by a preponderance of the evidence that the individual poses a significant danger, a one-year extreme risk firearm PO must be issued. The red flag law adds New Mexico to the ranks of 17 other states with similar laws in effect.  

• The New Mexico Work and Save Act. On February 26, 2020, Governor Michelle Lujan Grisham signed HB 44, which provides access to an automatic, low-cost retirement savings option for privately-employed and self-employed workers who currently do not have employer-based retirement accounts. The new law establishes the New Mexico Work and Save Board, which is tasked with creating the New Mexico Work and Save Program. The Program will be voluntary for employers and employees and will operate by way of employee contributions via payroll deductions to fund Roth individual retirement accounts. The Board must implement the Program so that employees may begin contributions no later than January 1, 2022. Covered employers will be liable for knowingly or intentionally failing to transmit a payroll deduction contribution to the Program on the earliest date the covered employee’s withheld amount can reasonably be segregated. This act is effective May 20, 2020.

• Pregnancy Accommodations. On March 6, 2020, Governor Lujan Grisham signed HB 25, which amends the state’s human rights act (applicable to employers with four or more employees) to prohibit workplace discrimination on the basis of pregnancy, childbirth, or a related condition. It also requires employers to provide reasonable accommodations to employees or applicants due to pregnancy, childbirth or related conditions, unless such accommodation would create an undue hardship. The law defines “reasonable accommodations” as “modification or adaptation of the work environment, work schedule, work rules or job responsibilities.” This amendment is effective on May 20, 2020.

• Minimum Wage Increases. The state increased its minimum wage to $9.00 per hour, up from $7.50, and for tipped employees $2.35 per hour, up from $2.13, effective January 1, 2020. On the local level, the City of Albuquerque increased its minimum wage to $9.35 per hour, up from $9.20, and for tipped employees $5.60 per hour, up from $5.50, effective January 1, 2020. Employers in Albuquerque that provide child care and/or health care benefits valued at $2,500 on an annual basis may pay a minimum wage of $8.35 per hour.  The County of Bernalillo increased its minimum wage to $9.20 per hour, up from $9.05, effective January 2, 2020. For tipped employees, the minimum wage there remains $2.13 per hour. The City of Las Cruces increased its minimum wage to $10.25 per hour, up from $10.10, and for tipped employees to $4.10 per hour, up from $4.04, effective January 1, 2020. The City of Santa Fe increased its minimum hourly wage, effective March 1, 2020, to $12.10 per hour, up from $11.80. For tipped employees, the minimum wage there remains $2.13 per hour. Finally, the County of Santa Fe increased its minimum wage to $12.10 per hour, up from $11.80, and for tipped employees to $3.62 per hour, up from $3.53, effective March 1, 2020. 

• Tribal Casino Immunity. In its recent opinion in Mendoza v. Isleta Resort and Casino, the New Mexico Supreme Court found that a tribe does not waive its sovereign immunity to workers’ compensation claims merely by committing in a tribal gaming compact to establish a workers’ compensation program. Though the ruling is a win for tribal employers hoping to protect their sovereignty against state workers’ compensation agencies, the court also warned parties not to be too cavalier. Tribal employers should review the decision and take appropriate steps to help safeguard their sovereign immunity in similar circumstances.

New Mexico employers should take this opportunity to review any policies and procedures potentially affected by the above developments. Employers also should stay tuned for more twists and turns as the state legislative session progresses.