1. What legal protection does New Mexico provide employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time for any reason or for no reason at all under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make “common law protections” or (2) the legislature, which enacts “statutory protections.” Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers’ compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to “fill the gaps” where no statute exists for a given situation.
Common Law Protections
New Mexico recognizes a public policy exception to the at-will employment doctrine. An employer may not fire an employee for a reason that contravenes a clear mandate of public policy. An employee has a cause of action in other words, the employee may sue for wrongful discharge when the motivation for the discharge violates public policy.
To determine what constitutes public policy, New Mexico courts will look to statutes and constitutional provisions to determine if a given practice has been endorsed (e.g. the right to collect workers’ compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because a New Mexico statute endorses an employee’s right to collect workers’ compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening New Mexico’s public policy. In both situations, employees are protected from retaliatory discharge. In particular, New Mexico whistleblowers are protected from retaliation under the public policy exception in certain situations.
In addition, the New Mexico Legislature has adopted narrow statutory protections for certain activities. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: discrimination, Medicaid fraud, mining safety, occupational health and safety, radiation control, and workers’ compensation. Public Employees are also protected under the Whistleblower Protection Act of 2010.
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged for a reason that is contrary to the public policy of the state of New Mexico. Employees must demonstrate that they were discharged in retaliation for performing acts that public policy has authorized or would encourage, or for refusing to do something required by an employer that public policy would condemn.
Specifically, New Mexico has protected employees from retaliation for the following activities:
- Reporting unsafe working conditions to appropriate public officials (the New Mexico Health and Environment Department, and the Occupational Health and Safety Bureau)
- Reporting suspected criminal activity
- Reporting unauthorized use of federal funds;
- Refusing to engage in political lobbying for employer
- Filing workers’ compensation claim
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, testifying in a proceeding, or participating in a proceeding under New Mexico’s Human Rights Act (HRA). Also, employers are prohibited from preventing any person from complying with the HRA. The HRA prohibits, among other things, discrimination in employment on the basis of race, age, religion, color, national origin, ancestry, sex, physical or mental handicap, serious medical condition, spousal affiliation (in some cases), and sexual orientation or gender identity (in some cases). N.M. Stat. Ann. § 28-1-7(I).
Fraud: An employee may not be retaliated against for reporting fraud against taxpayers. N.M. Stat. Ann. § 44-9-11.
Medicaid Fraud: An employee may not be discharged (or discriminated against) in retaliation for disclosing information to the Human Services Department, or participating in a proceeding concerning Medicaid fraud. N.M. Stat. Ann. § 27-14-12.
Mining Safety: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, or testifying in a proceeding under the Mining Safety Act. N.M. Stat. Ann. § 69-8-16.
Occupational Health and Safety: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying in a proceeding, or exercising a right concerning violations of occupational health and safety standards. N.M. Stat. Ann. § 50-9-25.
Public Employees: Public employees may not be retaliated against for reporting an unlawful or improper act. N.M. Stat. Ann. § 10-16C-3.
Radiation Control: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying in a proceeding, or exercising a right under the Radiation Protection Act. N.M. Stat. Ann. § 74-3-16.
Workers’ Compensation: An employee may not be discharged (or discriminated against) in retaliation for seeking workers’ compensation benefits. N.M. Stat. Ann. § 52-1-28.2.
3. How do I file a whistleblower or retaliation claim in New Mexico?
Generally: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 4 years of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer. N.M. Stat. Ann. § 37-1-4.
Discrimination: An employee may file a written complaint with the New Mexico Department of Labor, Human Rights Division (HRD). The complaint must be filed within 300 days of the retaliatory action. The complaint must include the name and address of the person alleged to have committed the retaliatory action, as well as information regarding the incident. The HRD will provide your employer with a copy of the complaint, investigate the incident, and attempt to resolve the matter. If you believe you have a claim, you should contact the HRD immediately at the following:
Human Rights Division
1596 Pacheco St.
Santa Fe, NM 87505
Occupational Health and Safety: An employee may file a complaint with the New Mexico Occupational Health and Safety Bureau (OHSB). The complaint must be filed within 30 days of the retaliatory action. OHSB will investigate and may file a lawsuit on your behalf. If you believe you have a claim, you should contact the OHSB immediately.
OHSB provides a discrimination complaint form on their web site. A complaint may be submitted by telephone, fax, or mail. You may also contact OHSB at:
State of New Mexico Environment Department
Occupational Safety & Health Bureau
P.O. Box 26110
Santa Fe, NM 87502
525 Camino de los Marquez, Suite 3
Santa Fe, NM 87505
Main Phone: 505-476-8700
Other Phone: 1-877-610-6742