As a labor and employment arbitrator and mediator, I regularly receive calls from folks desiring general legal information regarding labor and employment law.

Frequently the callers believe they (or their members, if a union) have faced some sort of adverse employment action, or they would like to take some kind of action against an employee, and wonder if such action has or could give rise to a legal claim. I let them know that, as an arbitrator and mediator, I cannot represent employers, employees or unions as an advocate, due to conflicts. However, I often explain some general legal principles and refer them on to another attorney for legal advice.

Based on my past experience as PELRB Deputy Director and hearing examiner, I also have frequent occasion to field questions concerning New Mexico’s regulatory structure for collective bargaining. After many such conversations I have realized that posting this general legal information could be helpful to many employers, union advocates, and employees.

TABLE OF CONTENTS

I.			Introduction
II.			Standards and agencies for various regulatory issues
			1.		Union-related matters generally
			2.		Benefits issues
			3.		Child labor standards
			4.		Employment discrimination
			5.		Family Medical Leave Act (FMLA)
			6.		Immigration issues
			7.		Unemployment insurance
			8.		Wage and hour issues, generally
			9.		Workers’ compensation
			10.		Workplace safety
			11.		Other Wrongful Employment Action—Private Sector
III.			Public Employee Bargaining Act and Related Local Labor Ordinances
			1.		Historical background
			2.		Overview of basic rights
			3.		PELRB
			4.		Local Boards
			5.		Arbitration
			6.		Sources of law and decision summaries
			7.		Resources and Links
IV.			Discipline in public sector employment
V.			Special issues in public safety employment
VI.			Special issues related to severance of New Mexico public school employment

I. INTRODUCTION            

The subject of “labor and employment law” is a broad one, highly variegated and complex. Accordingly, this page seeks only to briefly describe and explain some categories and salient issues raised in the broad “labor and employment law” category, in an “overview” fashion. It also provides some limited information on the agency or agencies responsible for the various categories and subcategories. However, this page does not purport to be comprehensive or up to date, and anyone with a specific issue or complaint in the area of labor or employment law should immediately contact the relevant agency, their labor representative if any, and/or a private attorney for further information.

* * * * * * * * *

The first thing to keep in mind is that labor and employment law themselves are very distinct from each other, involving completely different issues and legal standards.

“Labor law” refers to the state and federal laws and regulations governing collective bargaining, or union-related activities. The National Labor Relations Act (NLRA), 29 USC 151 et seq., governs the collective bargaining relationships in most private sector industries, and there are several other federal statutes that govern labor relations in specific industries or sectors of the economy. Many states—such as New Mexico—have also enacted collective bargaining statutes modeled on the NLRA, to cover those some or all sectors of the economy not covered by federal law.

“Employment law,” in contrast, is the general catch-all phrase that covers all other areas of the law related to the various phases, conditions and circumstances of the employment relationship. Disputes arising in this area of the law often fall into one of the following categories:

• child labor standards;
• employment benefits;
• hiring, discipline and firing;
• immigration status of employees;
• illegal discrimination or retaliation;
• privacy, and the scope of legitimate restraints on off duty conduct;
• unemployment insurance benefits;
• wage and hour issues;
• work place safety issues; and
• worker’s compensation issues.

However, this list represents some highlights only, and is not by any means exhaustive.

The second issue to keep in mind is that, in the case of labor law, the disputants must determine whether their issue is governed by federal or state law. Because the NLRA and other federal labor laws exclude a number of industries, employers and employees from its coverage, many states have enacted collective bargaining laws. Some states’ statutes cover all or several types of employees, employers or industries not covered by the NLRA or other federal statutes. Some states, such as Illinois, do so by way of multiple statutes, each covering different sectors or types of employees. Most state laws, however, cover only certain public sector employees, as does New Mexico’s.

The third point to be aware of is that the issues and legal standards may also vary greatly depending on whether the dispute arises in the private or public sector. For instance, public sector employment frequently gives rise to certain constitutional protections related to such issues as hiring, discipline, firing and the right to benefits. In contrast, such protections usually do not exist in private sector unless specifically provided through state statute, negotiated collective bargaining agreements, or employee handbooks or policies. In private sector employment relations, the default status of non-unionized employment is “at will,” meaning an employee may generally be fired for any reason, even a bad one, provided he or she was not fired on grounds prohibited under the law, such as sex/gender, race, nationality, religion, age, disability or, in some places such as New Mexico, retaliatory discharge.

Finally, some public sector employees may be treated still differently by separate statute or regulations, such as public safety employees, and public school employees in New Mexico. See Sections V and VI below.

II. STANDARDS AND AGENCIES FOR VARIOUS REGULATORY ISSUES            

Consistent with the foregoing, the nature of the dispute and the sector of the economy involved will largely determine the relevant legal standards, as well as what forum or administrative agency will hear the particular dispute.

Under some laws, you may go only through the agency charged with enforcing that law, such as for Prohibited or Unfair Practice Complaint under labor law. In contrast, some other statutes provide a “right of private action” that permits a claimant to sue in court, such as under some employment discrimination laws. However, even if there is a right of private action, the claimant will generally be required to first exhaust his or her administrative remedies at the relevant agency, before proceeding to court.

Note that complaints filed under the authority of employment or labor contracts, and administrative actions, may have very short deadlines in which to file such claims. The deadlines may be measured in months or even days. Accordingly, you should contact the appropriate representative or agency, or a private attorney, immediately upon learning of the existence of a possible claim.


Union-related matters are governed by statute and enforced by a particular agency. All of the various statutes—federal and state—are similar in that they protect the right of certain employees to engage in collective bargaining, by prohibiting discrimination or retaliation based on union related activities, and by providing procedures under which employees can elect or decline to be represented by a labor organization (a union).

For New Mexicans working in the private sector, the starting point to determine relevant rights and duties will be the National Labor Relations Act (NLRA), 29 USC 151 et seq. The NLRA is enforced by the National Labor Relations Board (NLRB), and all other collective bargaining statutes—both state and federal—are generally modeled on the NLRA, as well as NLRB case law.

For New Mexicans working in state, municipal or local government, or in the public school or higher education systems, union-related matters are generally governed in the first instance by the New Mexico Public Employee Bargaining Act (PEBA), NMSA § 10-7E-1, et seq. PEBA is enforced by the New Mexico Public Employee Labor Relations Board (PELRB).

Additionally, quite a few local labor-management relations boards (“Local Boards”) have been created under the authority of PEBA. To expedite a public sector labor matter, it should always be raised with the appropriate labor board in the first instance. To learn if a particular public employer has a local labor board, click here: Local Board Contact and Filing Information

New Mexicans engaged in the federal public employment sector, will likely be covered under one of the following acts and agencies:

• the Federal Service Labor Management Relations Act (“Federal Service Statute”), 5 U.S.C. 7101 et seq., governs personnel and collective bargaining issues in the federal sector and is enforced by the Federal Labor Relations Agency (FLRA); or
• the Railway Labor Act, 45 U.S.C. 151 et seq., governs collective bargaining issues arising in the railway and airline industries. The RLA is enforced by the National Mediation Board.

Finally, New Mexico law now grants certain “collective bargaining rights” to persons providing child care services in their home. The new law, enacted in 2009, guarantees such providers’ right to be represented by a labor organization, for the purpose of collective bargaining with the Children Youth and Families Department (CYFD), regarding the “terms and conditions” under which the family child care providers provide child care. These providers are, of course, independent contractors to CYFD, not employees, and the types of things they may bargain over differ from the usual labor terms and conditions of employment. They include reimbursement rates and payment procedures for publicly funded care, health and safety conditions, the monitoring and evaluating of family child care homes, licensing and other fees, quality rating standards, training and certification requirements and any other matters that would improve recruitment and retention of qualified family child care providers and the quality of the programs they provide.

See NMSA § 50-4-33.

For more information specific to the New Mexico Public Employee Bargaining Act, see Section III below.


The Employment Benefits Security Administration (EBSA) of the U.S. DOL provides considerable information and oversight regarding the administration of health and retirement benefit plans. Noteworthy areas of interest include:

• Affordable Care Act of 2010;
• claims for health or disability benefits—how to file;
• “COBRA” benefits—continuation of group health benefits after loss of employment;
• Employee Retirement Income Security Act of 1974 (ERISA), and minimum standards for retirement and health benefit plans in private industry;
• health benefit coverage for displaced workers and reservists;
• mental health coverage requirements;
• nondiscrimination in provision of benefits;
• privacy of identifying medical information;
• retiree health care plans, including solvency and whether benefits can be cut; and
• women, mothers and newborns—special benefits protections;

Review the EBSA’s website, http://www.dol.gov/ebsa/, for information specific to your issue or concern.


Federal standards governing the hours of youth employment vary based on the age of the youth, the type of job, and whether it is in the agriculture or non-agricultural setting.

In non-farm work, the allowable hours and types of work are as follows:


In farm work, the allowable hours and types of work are as follows:


Employees under 20 years of age may be paid a minimum wage of $4.25 or more an hour during their first 90 consecutive calendar days of employment with the employer. See Fair Labor Standards Act (FLSA), 29 USC §§ 201, et seq.

Additionally, in New Mexico, work permit certificates are required for students under 16 years of age. Such certificates can be issued by school superintendents, principals or designated personnel, and by the Labor and Industrial Division of the New Mexico Department of Workforce Solutions. See New Mexico Child Labor Act, NMSA §§ 50-6-1 et seq.

Child labor laws are jointly enforced by the Wage and Hour Division of the U.S. Department of Labor (US-DOL), and the Child Labor Section of the New Mexico Department of Workforce Solutions (DWS, formerly known as NM-DOL). For general information, see the U.S. DOL’s “FLSA-Child Labor Rules Advisor.

(a) Introduction and Overview.

Labor law governs discrimination, harassment and/or retaliation based on union related activities. Employment law governs other types of illegal discrimination. I stress “illegal,” because it is not enough that an employer treats one employee badly or different from other employees. Rather the alleged discrimination must be based on one or more of a number of factors that violate federal and/or state law.

Illegal employment discrimination generally includes that based on race; age; religion; color; national origin; ancestry; sex/gender; physical or mental handicap or serious medical condition. Additionally, in New Mexico, it also includes sexual orientation or gender identity, if the employer has 15 or more employees; and spousal affiliation if the employer has fifty or more employees.

Under anti-discrimination law, an employer may not discriminate in the hiring, promotion, job assignment and/or wages, based on illegal criteria. Nor may an employer terminate or otherwise retaliate against an employee for filing a claim based on discrimination. However, the availability of protection against illegal discrimination varies widely from statute to statute depending on the number of employees. For relevant statutory language, see the following acts:

• NM Human Rights Act (HRA), NMSA §§ 28-1-1 et seq. (prohibiting the first group of the foregoing types of employment discrimination by employers with 4 or more employees except where otherwise stated, and prohibiting sexual orientation/gender an spousal affiliation as stated above);
• Equal Pay Act of 1963 (EPA), 29 U.S.C. § 206(d) (protecting men and women who perform substantially equal work in the same establishment, from sex-based wage discrimination);
• Civil Rights Act of 1964, Title VII, 42 USC §§ 2000e -2 et seq. (prohibiting employment discrimination on the basis of race, sex, religion, or national origin, generally by employers with 15 or more employees, and creating the EEOC);
• Age Discrimination in Employment Act of 1967 (ADEA), 29 USC §§ 621 et seq. (protecting applicants and employees who are 40 years of age or older from employment discrimination based on age, where employer has 20 or more employees)
• Rehabilitation Act of 1973, Sections 501, 503 and 504, codified at 29 USC §§ 701 et seq. (prohibiting discrimination on the basis of disability in federal employment and among certain federal contractors, and requiring affirmative action employment plans);
• Pregnancy Discrimination Act of 1978, 42 USC §§ 2000e(k) et seq. (amending the Civil Rights Act to clarify that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions”);
• Americans with Disabilities Act of 1990 (ADA) and ADA Amendments Act of 2008, Titles I and V, 42 USC §§ 12101 et seq. (a.k.a. Equal Opportunities for Individuals with Disabilities, prohibiting discrimination based on disability in the private sector and in State and local government);
• Government Employee Rights Act of 1991, 42 USC §§ 2000e-16a et seq. (formerly 2 USC §§ 1201 et seq.) (amending the CRA to prohibit illegal discrimination in federal appointments); and
• Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) (prohibiting employment discrimination based on genetic information about an applicant, employee, or former employee).

Employment discrimination can be the intentional disparate treatment of members of a protected class, or it can result from the “disparate impact” of facially non-discriminatory actions or policies on a protected class. Additionally, intentional discrimination itself may be framed in one of several ways.

(b) Intentional discrimination or “disparate treatment”.

Under this type of claim, a plaintiff alleges he or she was treated differently from other employment applicants or employees because of his or her race, age, religion, color, national origin, ancestry, sex/gender, physical or mental handicap or serious medical condition, sexual orientation or gender identity, or spousal affiliation.

In these kinds of cases, the two main proof issues are animus, or that the discrimination was intentional, and causation between the discrimination and any adverse employment action. Employer liability for the conduct of its agent may also be an issue.

Causation may be proved by “temporal proximity” between acts evidencing discrimination and the adverse employment action, or other circumstantial evidence. Intent may be proven directly or through circumstantial evidence.

(c) Hostile workplace claims.

Because overt declarations of discriminatory intent are rare, the most common type of direct evidence is a pattern of remarks or conduct establishing a general prejudice towards the plaintiff or his or her protected class, and which arises to the level of a “hostile workplace.”

In this type of case, ambiguous statements, stray remarks and isolated conduct are insufficient. Instead, analysis usually turns on the frequency and duration of the conduct, and whether the conduct would be objectively offensive to a reasonable person.

In these types of cases, the employer can raise an affirmative defense that it exercised reasonable care to prevent and correct harassment, and the employee failed notify the employer of the misconduct, or to use the employer’s remedial procedures. The employer may also present evidence that the conduct would not have been “objectively offensive” in the particular work environment, or to the particular employee who was accustomed to and/or personally engaged in crude behavior, but at least one federal circuit court has held that a plaintiff need not be a “saint” to recover under an employment discrimination claim.

(d) Quid pro quo harassment or “tangible employment action” claims.

The “quid pro quo” claim is a type of direct evidence, intentional discrimination case that is unique to sexual harassment. As the name suggests, this occurs when an employer conditions some employment action, benefit or condition upon the receipt of sexual favors.

In this type of claim, the plaintiff must show “tangible employment action.” Therefore, conditions or circumstances such as the following will not be enough, standing alone, although they may help establish a claim for hostile workplace: “bruised egos;” transfers without loss or change in pay, duties, prestige or benefits transfer to a more inconvenient job; or prank phone calls.

Employers are strictly liable for the actions of supervisors in these types of cases.

(e) “Prima facie” or circumstantial cases.

Where there is no direct evidence of intentional discrimination, a plaintiff may present a prima facie case from which discrimination can be inferred. The elements for a prima facie discrimination case are that the claimant:

• is a member of a “protected class,” meaning covered by one of the foregoing statutes;
• has suffered adverse employment action such as discipline, termination or failure to hire or promote; and
• in doing so, has been treated differently from similarly situated non-members of that protected class.

If a prima facie case is alleged, the burden will shift to the prospective employer or employer to demonstrate that it had other legitimate reasons for acting as it did. If the employer does demonstrate a legitimate reason, the burden will then shift back to the plaintiff to demonstrate that the reason given is “pretextual.” The plaintiff always retains the ultimate burden of convincing the trier of fact that an adverse employment action was discriminatorily motivated.

(f) Disparate Impact.

Disparate impact claims, unlike disparate treatment claims, are not premised on motive. Instead, motive is irrelevant and the focus of inquiry is on some facially neutral hiring device or employment practice that has a disproportionate impact on a group defined by race, color, religion, sex, national origin age and disability (although the latter two categories have different standards).

This is a rather controversial theory, and has several special difficulties. First, it applies only to statutory claims, not constitutional or §1981 claims. Second, it is difficult to establish since statistics alone have been held to be insufficient.

Methods for proving a disparate impact include the following:

• Effect on the population. For example, state census figures regarding graduation rates of a class have been held sufficient to show disparate impact of requirement of a high school diploma.
• Applicant flow. This type of analysis examines the relative pass rates or acceptance rates between classes.
• Four-fifths rule. This method goes to the degree of disparity, and under it a process’ impact is “adverse” where it produces a pass rate of less than four- fifths or 80% of that of the group with the highest pass rate. NOTE that some courts have rejected the four- fifths rule or any singe measure, and instead determine disparate impact on a case-by-case basis.

(g) Relevant agencies.

Questions or complaints concerning illegal employment discrimination should be directed to one of the following agencies:

• The New Mexico Human Rights Bureau of DWS; or
• the federal Equal Employment Opportunity Commission (EEOC)

If a matter is filed with either one of these two agencies, the other agency will grant reciprocity to that filing date. When the EEOC is unable to process claims in a sufficiently timely manner, or when it concludes there is insufficient evidence of violation, it may issue a “Right to Sue Letter.” This permits the claimant to proceed by filing a civil suit in court, and will deem him or her to have exhausted their administrative remedies before these agencies.


The purpose of the Family Medical Leave Act (FMLA), 29 USC §§ 2601 et seq., is to promote work/family balance by allowing employees to take reasonable unpaid leave for certain family and medical reasons, accommodating the legitimate interests of employers, and promoting equal employment opportunity for men and women.

Under the FMLA, eligible employees may take off up to 12 work weeks in any 12 month period for the birth or adoption of a child, to care for a family member, or if the employee themselves has serious health condition.

To be eligible for FMLA benefits, the employee must have been employed by the instant employer for at least 12 months (consecutive or nonconsecutive), and worked at least 1,250 hours. Additionally, the employer must employ 50 or more employees within 75 miles of the worksite. The employee must also provide 30 day advance notice for foreseeable events, and the employer may require a doctor’s statement attesting to the need for leave.

The employee’s position, or a comparable one, must be maintained in his or her absence. The employee is also entitled to have his or her benefits maintained, but they must continue to pay their portion during the leave. If both spouses work for the same employer, they are not each entitled to take 12 weeks off the illness.

Unlike many other statutory or regulatory schemes, the FMLA grants employees the ability to choose between filing a complaint with the Wage and Hour Division of the US-DOL, or filing a private lawsuit in court. See 29 CFR § 825.400 and § 825.401.

There are also special rules and/or provisions for military, and airline flight crew personnel. For more information on the FMLA, contact the US-DOL or click here.


The Immigration Reform and Control Act of 1986 (IRCA) (a.k.a. the Simpson-Mazzoli Act), 8 USC §§ 1101 et seq., among other things,

• requires employers to attest to their employees' immigration status;
• makes it illegal to knowingly hire or recruit immigrants who do not possess lawful work authorization, and
• prohibits employers with four or more employees from discrimination because of national origin or citizenship status against U.S. citizens, U.S. nationals, and certain authorized aliens (the provisions of Title VII of the Civil Rights Act of 1964 continues to apply to employers of 15 or more employees).

An Immigrant Visa (a.k.a. “permanent resident” or “green” card) is issued to eligible foreign nationals and grants the privilege of living and working permanently in the United States. Generally, obtaining a Green Card requires sponsorship by a family member or employer among other things, is also the first step in the naturalization process by which the foreign national would ultimately become a U.S. citizen.

U.S. immigration laws also provide for certain types of temporary work or work-related U.S. Visas. The following examples are overseen by the U.S. Customs and Immigration Service (USCIS) unless otherwise noted:

• H-1B Non-Immigrant Work Visas for applicants seeking temporary work in an enumerated “Specialty Occupation” (including accounting, computer analysts, programmers, database administrators, web designers, engineers, financial analysts, doctors, nurses, scientists, architects and lawyers);
• H-2B Work Visa for certain needed skilled and unskilled workers coming to the United States to accept a temporary or seasonal non-agricultural job from a U.S. employer;
• J-1 Visa for educational and cultural exchange programs designated by the Department of State, Bureau of Educational and Cultural Affairs, which permits certain U.S.-sponsored employment activities such as private sector au pairs, teachers and physicians, and government or academic professors, scholars and specialists.
• J-2 Visa under which the spouse or child of a person with a J-1 Cultural Exchange Visa may work with other proper documentation; and
• Q-1 International Cultural Exchange Visa, under which persons abroad who are at least 18 years old and have a U.S. sponsor may enter the United States to participate in an international cultural exchange program designed to provide practical training, employment and the sharing of the history, culture, and traditions of the participant’s country of nationality.

Under IRCA, employers are required to confirm the identity and employment authorization of all new employees, relying on “facially valid” documents. Typically, employers will view a U.S. passport; a Social Security card along with a current drivers license; a permanent resident or green card; or I-94 for U.S. Visa (non-immigrant visa) holders. Then, employers must complete an “I-9 Form” on the employee within three business days of hiring, and maintain the form in their records. Failure to comply with these requirements can result in civil fines of $100 to $1,000 for inaccurate paperwork, or criminal penalties of $250 to $5,500 for the intentional hiring of unauthorized immigrants.

An employee who submits false identification and/or false immigration status documentation can face criminal and civil penalties for Social Security fraud, identity theft, and/or forgery. Additionally, these could render the individual deportable, and permanently ineligible for future immigration.

For more information on IRCA and immigration employment issues, contact the USCIS, which superseded the Immigration and Naturalization Service (INS) and now enforces U.S. immigration law. For a more complete enumeration of categories of immigrants authorized for lawful employment in the U.S, contact the USCIS or see federal regulation 8 CFR § 274a.12. For more information on cultural exchange work-related visas, contact the U.S. Department of State or see their information sheet at http://travel.state.gov/visa/temp/types/types_1267.html#17.

NOTE that this is a particularly complicated area of law, for which legal counsel experienced in immigration and employment issues should be consulted before taking any formal action.


The Federal-State Unemployment Insurance Program in New Mexico is enforced and overseen by the New Mexico Department of Workforce Solutions and the U.S. Department of Labor (US-DOL). The relevant statute in New Mexico is NMSA §§ 51-1-1, et seq.

Unemployment insurance taxes, which are based on a percentage of the wages paid, are paid by all employers. New Mexico employers can now make a single on-line payment of unemployment insurance taxes, workers compensation taxes, and gross receipts taxes. See DWS, Tri-Agency Website FAQs.

An employee who has lost his or her job through no fault of his or her own is eligible for weekly unemployment compensation out of that insurance fund. Employers may contest the application for unemployment benefits, in which case there will be a telephonic administrative hearing which meets due process standards, and rights of appeal thereafter.

Benefits are available in the following circumstances:

• the employee was laid off;
• the employee was terminated, but not for “misconduct connected with work;” or
• the employee voluntarily quit his or her employment, but can prove good cause for doing so.

Mere unsatisfactory job performance or isolated violation of work rules will generally be insufficient grounds to deny unemployment benefits. Rather, the misconduct must amount to “callous and deliberate or wanton misbehavior,” or be so severe as to “reveal intentional and substantial disregard” of either the employer’s interests or the employee’s duties and obligations to the employer. In determining whether or not “misconduct” existed, the agency will consider the totality of the circumstances, including the employee’s past conduct, previous reprimands, the employee’s knowledge of the employer’s expectations, the reasonableness of those expectations, and the presence of any mitigating factors.

For example, absenteeism standing alone will not generally be sufficient to deny benefits, but persistent, chronic absenteeism without notice or excuse, and in the face of repeated employer warnings may be sufficient. Additionally, under the “last straw” doctrine, an employee may be denied unemployment benefits by a series of incidents, no one of which standing alone justifies denials of benefits, where the final incident, precipitating termination, demonstrates a willful or wanton disregard for the employer’s interest.

For the severance of the relationship to be interpreted as employer discharge rather than voluntary termination, the employer must have used language possessing “the immediacy and finality of a firing.” Similarly, the agency will look to the employee’s conduct, to determine his or her “subjective intentions and understanding” ultimately, the agency must determine it was reasonable for the employee to have concluded that he or she had been released from employment.

However, voluntary abandonment will not disqualify an applicant from unemployment benefits where there was good cause to do so. The good cause determination will look to both the conduct of the individuals involved, as well as the circumstances surrounding the separation. Ultimately, the burden will be on the employee to show that he or she was confronted with such “necessitous circumstances” that there was no alternative to separating from the employment. Good cause has been held to include illness and physical disability caused or exacerbated by work; the employer’s consistent failure to provide pay checks; and an employee’s failure to cross a picket line where there was threat of physical harm from crossing the picket line and it was understood that operations were shut down. Good cause has been held not to include personal reasons such as those related to reduced hours and transportation difficulties, or isolated reprimands made in a “loud voice”

If benefits are awarded, the amount paid will be based on a percentage of the wages received within a certain time period. Employees must certify weekly that they have met the minimum work search requirements, and were able and available to work three or more days that week, among other things. Currently, certifications can be made on-line, and DWS is currently working to have all phases, including application, be performed on-line.

An applicant or recipient will become ineligible to receive benefits if he or she fails, without good cause, to apply for suitable work when so directed by DWS, or to accept suitable work when offered. See NMSA § 51-1-7(A)(3). In determining whether work is suitable, DWS will look to risks posed to the individual’s health and safety; his or her physical capabilities and fitness, prior training, experience, prior earnings, length of unemployment and prospects for securing local work in the individual’s customary occupation. See NMSA § 51-1-7(B). Recipients may not restrict the hours, shifts or schedules they will consider based on purely personal reasons.

Benefits generally last for 24 weeks, but extended benefits may be available to eligible applicants during periods of high unemployment. New Mexico currently provides for one or more tiers or categories of extended benefits.

For more information on Unemployment Insurance programs see DWS Unemployment Insurance Bureau FAQs, DWS UI General Information and Extended Benefits FAQs, and US-DOL Unemployment Insurance Fact Sheets


Wage and hour disputes may include such issues as:

• the minimum hourly wage and overtime wage required under law;
• the amount of hours a person can be required to work;
• whether a person is entitled to rest and/or lunch breaks;
• the wage and hours allowed for children, which are discussed above;
• the time limit in which any owed wages and benefits must be paid upon voluntary or involuntary separation; and
• record keeping obligations.

Under the Fair Labor Standards Act (FLSA), 29 USC §§ 201, et seq., the federal minimum wage is $7.25 an hour, effective July 24, 2009. Some states, including New Mexico, have a higher minimum wage. New Mexico’s minimum wage is $7.50 an hour, effective January 1, 2009. Some municipalities, such as Santa Fe, have a still higher minimum wage, which are popularly known as “living wage” rates. In Santa Fe, the minimum wage is $9.85 effective January 1, 2009 but certain sectors and employers are excluded.

Where an employer is subject to multiple minimum wage rates, the higher one applies. Typically, certain categories of employers and/or employees are exempted from minimum and/ or overtime rates, or may be paid a subminimum wage. For example, there are generally special rules or exceptions for professionals, supervisors and management; tipped employees such as waiters and waitresses; children; and agricultural workers, to name a few. There are also specials rules and/or exceptions for public safety personnel, which are discussed in Section V, below. For more information on minimum wage rates generally, see the following links:

• U.S. Department of Labor
• N.M. Dept. of Workforce Solutions
• Santa Fe Living Wage Act

Federal and State wage and hour laws also provide for a maximum number of hours after which overtime must be paid, and the rate of overtime. Under the federal Fair Labor Standards Act and the New Mexico Wage and Hour Act, you are entitled to time and a half after working 40 hours a week. Some states provide for overtime for days longer than 8 hours.

Neither federal nor state law mandates breaks or lunch periods, provided that breaks of less than thirty (30) minutes are not deducted from pay, and provided the employees are paid overtime as appropriate.

Nor does federal law limit the total hours that may be worked, provided overtime is paid, although New Mexico law does limit the number of hours that an employee may work in several respects. In New Mexico, hotel or eating establishment employees cannot be required to work more than 10 hours a day and/or 70 hours a week. See NMSA § 50-4-13. Other state employees (except police, fire fighters, farm hands and stand-by employees) cannot be required to work more than 16 hours a day except in emergency situations. See NMSA § 50-4-30.

For more information on wage and hour matters, including record keeping obligations and the collection of unpaid wages and/or vacation pay, see the following:

• New Mexico Department of Workforce Solutions, Labor & Industrial Division FAQS
• Handy Reference Guide to the Fair Labor Standards Act

The Workers’ Compensation statutory scheme, see NMSA §§ 52-1-1, to 52-10-1, represents a legislative “quid pro quo” exchange, where employees are provided with certain but capped benefits for accidents arising out of the scope of employment, in return for the loss of a common law tort claim for such accidents, regardless of who was at fault. In other words, workers’ compensation is the “exclusive remedy” for certain work place injuries. See NMSA §§ 52-1- 6(D), -6(E), - 6, -8, -9, and 52-5-17.

The basic requirements for benefits under the New Mexico Workers’ Compensation Act (WCA) are as follows:

1. an accidental injury;
2. arising out of employment;
3. occurring in the course of employment; and
4. causing a disability to a reasonable degree of medical probability.

An “accident” can be an untoward event or the unexpected result of routine activities, including cumulative trauma such as carpel tunnel syndrome. “Arising out of” includes cases where the employment increases the risk of this type of injury; the injury occurs during restroom breaks or meals; and even where injury resulted from horseplay if such horseplay has been tolerated by the employer in the past. The “in the course” requirement basically means the injury occurred while the employee was at work, or when engaged in an activity for the benefit of or to further the interest of the employer. It does not include injuries sustained while going to or coming from work, generally. “Disability” includes “occupational diseases,” meaning those diseases “peculiar to” or “peculiarly exacerbated by the occupation”. See NMSA § 52-3-33. Establishing the required degree of “medical probability” requires a doctor’s testimony that it is more probably than not that the accidental injury caused the disability. However, pre-existing conditions are also covered if they are aggravated by the accident.

Although the WCA system is a “no fault” system, the total compensation may nonetheless be increased or decreased by 10% by certain misbehavior, such as that related to safety rules or safety devises, alcohol or drug use. In rare cases, compensation may be altogether barred, or the case may be removed from the WCA system. For example, the claim can be barred if the injury was solely the result of alcohol or drug use, or willful violation of work rules or instructions. In such cases, the injury cannot be understood to arise out of work. Conversely, workers’ compensation will not be the “exclusive remedy” where the employer’s conduct is so egregious that the injury cannot be understood to be accidental, such as where the employee has been willfully exposed to foreseeable risk or certain injury.” See Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, ¶ 12, 131 N.M. 272, and related line of cases.

If the injury is a qualifying one, the employee will be entitled to reasonable and necessary medical treatment for as long as reasonably necessary. See NMSA § 52-1-49(A). Once the employee attains “maximum medical improvement,” he or she can still be eligible for palliative treatment. See § 52-1-24.1. The employee may also be entitled to disability benefits, for either temporary total disability (TTD), temporary partial disability (TPD), permanent total disability (PTD), permanent partial disability (PPD), or scheduled benefits for injuries to extremities. See § 52-1-41, -25.1, -25, -26, -43. Finally, the WCA scheme provides for death benefits, including two-thirds of wages for up to 700 weeks, and $7,500.00 for funeral expenses, in addition to TTD. See § 52-1-46.

When a claim is first filed, the matter will be set for mediation, after which the Mediator will issue a written Recommended Resolution. The mediation is mandatory but the Recommended Resolution is non-binding. Thereafter, if the employee does not accept the Recommended Resolution, the matter will be set for a formal non-jury trial before a Workers’ Compensation Judge.

For additional information regarding the WCA scheme, contact the Workers Compensation Administration, or view their website at http://www.workerscomp.state.nm.us.


The Occupational Safety and Health Act of 1970 requires employers to provide their employees with working conditions that are free of known dangers. The Act also created the Occupational Safety and Health Administration (OSHA), which sets and enforces protective workplace safety and health standards, and provides information, training and assistance to workers and employers.

Generally, workers may file a complaint with OSHA, if they believe their employer is not following OSHA standards or there are serious hazards.

However, New Mexico employees in the private sector and non-federal public sector should contact the New Mexico Occupational Health & Safety Bureau (OHSB) of the Department of Environment, which enforces federal and state Occupational Health and Safety Regulations within New Mexico.


The following sections will address the public sector labor law, and other public sector employment issues in greater detail. In regards to private sector employment related issues not discussed in the foregoing subsections, you should consult a private attorney immediately to determine if you or your opposing party has a viable legal claim.

Some of he most commonly recurring questions relate to adverse action that is not related to any kind of illegal discrimination or action discussed above. For instance, an employee may believe he was refused hire based on an improperly negative reference from a prior employer. Prior employers are allowed under the law to provide any non-confidential information in a reference, but the information must be true and may not be provided for the purpose of maliciously harming the ex-employee.

In another common example, an at-will employee may be concerned that she was disciplined or fired improperly, although not for reasons having to do with illegal discrimination described in the preceding subsections. New Mexico courts recognize two exceptions to the general rule of at-will employment:

1. discharge in violation of public policy, such as retaliatory discharge; and
2. discharge in violation of an implied contract of employment, such as under an employee handbook or police.

Implied contracts have been upheld “where the facts showed the employer either has made a direct or indirect reference that termination would only be for just cause or has established procedures for termination that include elements such as a probationary period, warnings for proscribed conduct, or procedures for employees to air grievance.” Often, the “implied contract” found will have arisen from an employee handbook. The test to determine whether a document such as a handbook arises to an implied contract is based on the parties’ degree of reliance on it. It will constitute a contract where the document thoroughly controls the employer-employee relationship, such that the employee relies on it and expects the employer to conform to its procedures.

Another recurring issue is that of “constructive discharge.” Constructive discharge is not an independent tort, but rather a way of recasting an apparent resignation as termination. The issue can arise in the context of either implied contract claims or statutory discrimination claims. To state a claim for constructive discharge, an employee must allege facts sufficient to find that the employer made working conditions so objectively intolerable that a reasonable person would be compelled to resign. Examples of adverse employment actions found to rise to this level include humiliating demotions; extreme cuts in pay; transfers to positions with unbearable working conditions; overt pressures to resign and/or accept early retirement; and retaliatory measures such as discrimination, unreasonable criticism and involuntary transfers.

III. Public Employee Bargaining Act (PEBA) and Related Local Labor Ordinances            


New Mexico enjoys a rich and unique history of public sector collective bargaining. Recognition of public sector collective bargaining agreements dates back to 1959, and the State has over the years enacted two collective bargaining acts, the first which expired pursuant to an internal sunset clause and was replaced by the current act.

The State of New Mexico is also one of the rare states that provide for new and grandfathered Local Boards that operate alongside the State PELRB.

For more information concerning the history of public sector collective bargaining in New Mexico, please consult the PELRB Practice Manual that Ms. Vaile authored and compiled while Deputy Director of the PELRB, available at http://www.pelrb.state.nm.us/pdf/peba/ pelrbpracticemanual.pdf. Also, please contact us to obtain copies of the first Act, PEBA I, NMSA§§ 10-7D-1 et seq., regulations promulgated under it, or other historic documents associated with the first PELRB and PEBA.


PEBA and local New Mexico labor ordinances cover all regular public employees provided they are not managerial, supervisory or confidential employees. PEBA and local ordinances also cover the probationary employees ofpublic schools, and provide limited protections to other probationary employees. See Health Care Local 2166, NUHHCE Dist. 1199 v. UNMHSC, 2d Judic. Dist., Case No. CV-2007-8161 (Feb. 20, 2008) (J. Nash).

NOTE, however, that the terms “manager,” “supervisor,” and “confidential employee” have specific definitions under statute that may not coincide with popular conceptions. The terms are often disputed, and the designation or lack of designation as such is not controlling. For more information on these definitions see the firm’s Keyword and Phrase Digest for Public Sector Collective Bargaining Law in New Mexico.

The basic rights and duties under PEBA and local labor ordinances and resolutions are:


In interpreting the application and breadth of the foregoing rights and duties, the PELRB, local boards, and courts will look to NLRA precedent, particularly where the federal and New Mexico acts deal with the same or similar language.


The PELRB is created by PEBA to enforce the PEBA. It is a tripartite Board, with one member appointed by or upon recommendation of management, one member appointed upon recommendation of labor, and one member appointed upon the joint recommendation of the first two members. Nonetheless, all three board members are in fact “neutrals” under the law, and required to execute their decision making and rule-making duties without bias or prejudgment of the merits.

The purpose of this tripartite structure is twofold. On one hand, having members appointed from both labor and management sectors, gives the board special insight and wisdom that comes from a member having worked within a particular sector. On the other hand, the tripartite structure better ensures the board is balanced, and is perceived as such by the public, since there will be one member endorsed by labor, one member endorsed by management, and then a third and often tie-breaking member endorsed jointly by the other two members.

For helpful guidance on the requirements of neutrality, see the Final Report of the Neutrality Project (2008) published by the Association of Labor Relations Agencies (ALRA). The “Neutrality Report” is a restatement of black letter legal principles concerning the neutrality of labor boards and board members, and can be a very helpful guide and resource.

The PELRB also includes one or more full-time exempt staff, that oversee day-to-day operations, and may also conduct hearings and make recommendations to the PELRB. Office address and contact information, and a staff and member directory are available at www.pelrb.state.nm.us.

The PELRB is a governmental entity subject to the New Mexico Open Meetings Act (OMA), NMSA §§ 10-15-1, et seq. Generally, this means that meetings at which action is take must be open to the public and properly noticed, and such meetings may only be closed for certain limited actions including discussing pending adjudications. For more information on OMA compliance, see the Office of the Attorney General’s OMA Compliance Guide. Additionally, PELRB filings (other than showings of interest) and its decisions are public records available under the Inspection of Public Records Act (IPRA). For more information on IPRA compliance, see the Office of the Attorney General’s IPRA Compliance Guide.

For more information on the kinds and number of cases filed with the PELRB since the enactment of PEBA II, see the following documents. These documents include both statistical data on issues and resolutions, and qualitative case descriptions, and are updated by Pilar Vaile, P.C.




As noted above, PEBA permits continued existence of Local Boards and the formation of new Local Boards, which enforce the rights and duties under both PEBA and the local ordinance or resolution creating that Local Board. There are three types of Local Boards, based on the section of PEBA under which they derive their authority: § 10, § 26(A), and § 26(B) Local Boards.

Local Boards, like the PELRB, tend to be tripartite boards appointed upon recommendations, but some of § 26(A) grandfathered Local Boards vary from this scheme. For example, the APS Local Board is actually the APS School Board, and the Deming Local Board is that City’s Personnel Board. Also, the Albuquerque Local Board is rather unique in that its members are actually appointed by the respective interest, rather than merely upon their recommendation.

Local Boards are also like the PELRB in that their meetings are open under the OMA, and their filings and decisions (other than showings of interest) are available under IPRA. However, unlike PELRB, Local Board’s typically do not have their own staff, although some (for example, CNM, NMSU and San Juan College) do contract with an independent general counsel.

Section 10 Local Boards are created by ordinance, resolution or charter amendment (“ordinance”) of a public employer other than the State, but must be approved by the PELRB.

These Local Boards are required to follow all procedures and provision of PEBA unless otherwise approved by the PELRB. Unless a variance is specifically requested, see NMAC 11.21.5.11, public employers creating a local board pursuant to § 10 are required to use one of the following model templates to create a local board:

• Model Ordinance for public employers other than public schools; or


• Model Resolution for public schools (identical to the Model Ordinance except that public school probationary employees are included in the bargaining unit and the impact of professional and instructional decisions is a mandatory subject of bargaining).

Section 26(A) Local Boards are the oldest grandfathered Local Boards, established prior to October 1, 1991 by an ordinance not substantially amended after January 1, 2003. Under New Mexico case law, the only substantive requirements a § 26(A) ordinance must meet is that it constitute “a system of provisions and procedures permitting employees to form, join or assist a labor organization for the purpose of bargaining collectively through exclusive representatives” extend its protections to all public employees covered under PEBA; and provide for a balanced, neutral labor board to enforce its provisions.

Section 26(B) Local Boards are those grandfathered Local Boards either created after October 1, 1991, or created before then by an ordinance substantially amended after January 1, 2003. Section 26(B) imposes many more substantive requirements on its grandfathered local boards, most of which relate to equivalency with § 10 requirements.

Where a Local Board is in existence and operational, Prohibited Practices Complaints (PPCs), representation petitions and all other matters should be filed with that Local Board. To ascertain if your jurisdiction has a local board, or to obtain filing and contact information, click the following link: Local Board Contact and Filing Information.

To review summaries of Local Board decisions, see the firm’s Summary of Local Board Decisions. Local Board decisions are also indexed along with PELRB decisions into the firm’s Keyword and Phrase Digest for Public Sector Collective Bargaining Law in New Mexico.

When dealing with Local Boards, a recurrent issue is whether the creation of a Local Board divests the PELRB of jurisdiction or merely creates concurrent jurisdiction. Although the PELRB and its hearing examiners have regularly rejected the former proposition, the law is not yet clear. On one hand, it has been PELRB practice and precedent to dismiss and/or transfer matters where there is a functioning Local Board. On the other hand, the PELRB has indicated it has authority to review the rule-making actions of Local Boards for compliance with PEBA, and to impose its interpretation of PEBA and PEBA-related rights onto even grandfathered Local Boards.

However, PEBA itself expressly provides only for PELRB review of local ordinances, and judicial review of the decisions or orders of Local Boards, see § 10-7E-10, and -23(B), and NMRA 11.21.5.12, and -.14, and to date no State Court has ruled on these matters.


PEBA and local New Mexico labor ordinances, like other labor regulatory schemes, provide for two types of arbitration: grievance arbitration and interest or impasse arbitration.

Section 17(F) of PEBA requires all collective bargaining agreements to contain procedures for resolving disputes arising under the contract. It further requires those procedures to result in final, binding arbitration by a neutral arbitrator. Section 18 of PEBA also require parties at an ultimate impasse in contract negotiations to resort to last, best offer arbitration to resolve the impasse.

The two types of arbitration are quite different in function and focus. In grievance arbitration the arbitrator adjudicates existing contract rights while applying well-established legal standards, and the parties’ negotiations up to that part are irrelevant. AFSCME and State, FMCS 090122-53133-08 (Fincher 2009).

In contrast, interest arbitration determines an “equitable answer to what the parties have not been able to resolve by themselves,” and the arbitrator’s job is to reach a solution that “will be satisfactory enough for both sides to be workable.” Id. Interest arbitration has been described as being more akin to an extension of the bargaining process, than a process of adjudication, and the arbitrator may consider provisions the parties had previously considered negotiable. State and AFSCME Council 18, FMCS No. 05-00657-7 (Helburn 2005).

For more information on arbitration awards issued under PEBA and local labor ordinances in New Mexico see the following documents:

• Summaries of Arbitration and Arbitration-Related Decisions, and


• Keyword and Phrase Digest for Public Sector Labor Arbitration in New Mexico

To summarize some of what was discussed above, there are four basic sources of law governing or guiding public sector collective bargaining in New Mexico:

• judicial decisions;
• decisions issued by the PELRB or its hearing examiner reports (“Agency decisions”);
• decisions issued by Local Boards; and
• arbitration awards.

PELRB hearing examiners and the Board have regularly applied or looked to such decisions issued under both PEBA I and PEBA II, where the relevant statutory provisions that have not changed. Additionally, in interpreting public sector collective bargaining rights, the PELRB, local boards, and courts all tend to look to NLRA precedent, particularly where the federal and New Mexico acts deal with the same or similar language.

Judicial and Board Decisions, as well as select Local Board Decisions, Hearing Examiner Decisions and Arbitral Awards, are summarized on the following links. Please contact us to obtain full copies of these decisions.



The firm also maintains and updates two Keyword and Phrase Digests of these sources of law:

• the firm’s Keyword and Phrase Digest for Public Sector Collective Bargaining Law in New Mexico, which covers judicial, PELRB and Local Board decisions; and


• the firm’s Keyword and Phrase Digest for Public Sector Labor Arbitration in New Mexico.

The following links may be helpful to you if you are engaged in public sector collective bargaining in New Mexico, or simply wish to learn more about it.



IV. DISCIPLINE IN PUBLIC SECTOR EMPLOYMENT            

Public sector employees—even when not unionized—usually have greater rights in their employment than private sector employees. (The exception is “exempt” employees, which are not discussed further here.)

First, public sector employees threatened with discipline generally must be afforded a “Loudermill” hearing, at which time they can present their side of the story before the employer makes a decision on discipline, meaning prior to the issuance of either discipline or notice of intended discipline. See Loudermill v.Cleveland Board of Education, 470 U.S. 532 (1985).

Second, public sector employees are generally able to appeal discipline through the relevant “merit system protection” or personnel statute and/or regulations. For example, in New Mexico a State employer must show on appeal the there was “just cause” for the discipline. To establish “just cause,” the State Personnel Board must determine both that the employee engaged in misconduct and that the discipline was appropriate and reasonable in light of the misconduct. Just cause to terminate in particular “exists when an employee engages in behavior inconsistent with the employee’s position and can include, among other things, incompetency, misconduct, negligent, insubordination, or continuous unsatisfactory performance.” Selmecski v. N.M. Dept. of Corrections, 2006-NMCA-024, ¶15, ¶18, 139 N.M. 122, 127-128 (internal quotations and citations omitted).

Although an employer should usually engage in progressive discipline, this is not an absolute requirement and will instead depend on the nature and severity of the misconduct and surrounding circumstances.

Frequently, the government’s merit systems protection or personnel act will provide the exclusive remedy to employees seeking to challenge discipline under the relevant statute. For instance, State employees may not bypass the State Personnel Act’s administrative appeal system to file a lawsuit directly in state court on a theory of breach of implied contract based on that same Personnel Act. NOTE, however, that State employees represented under a collective bargaining agreement may elect to challenge discipline under the State Personnel Act or the negotiated grievance-arbitration procedures. See § 10-9-18(H) of the State Personnel Act.

V. SPECIAL ISSUES IN PUBLIC SAFETY EMPLOYMENT            

Federal law authorizes several significant wage and hour exceptions for public safety (e.g., fire and police) personnel.

First, where a city employs less than five people in law enforcement or fire protection activities during the workweek, § 213(b)(20) of FLSA completely exempts those employees from overtime pay requirements. For purposes of this, police and fire are counted separately, and no distinction is made between full-time and part-time employees, or between employees on duty and employees on leave. See 29 C.F.R. §553.200(b). However, fire and police chiefs higher who engage in fire protection or law enforcement activities are counted for purposes of this provision, although they may normally be exempt from overtime requirements. See 29 C.F.R. §553.216.

Second, public law enforcement entities not qualifying for the foregoing “complete exemption” may nonetheless qualify for a “partial exemption” under §207(k) of FLSA. They may be able to utilize an alternative “work period” in which to calculate overtime, from 7 to 28 consecutive days. For example, fire protection personnel are due overtime under such a plan after 212 hours worked during a 28-day period, while law enforcement personnel must receive overtime after 171 hours worked during a 28-day period. For work periods of at least 7 but less than 28 days, overtime pay is required when the number of hours worked exceeds the number of hours which bears the same relationship to 212 (fire) or 171 (police) as the number of days in the work period bears to 28. See 29 CFR § 553.201 (a.k.a., “Section 7(k) exemption”).

Finally, under 29 U.S.C. §207(o) of FLSA a State agency or local government may be able to give compensatory time at a rate of not less than one and one-half hours for each overtime hour worked, in lieu of cash overtime compensation. However, the employer and employee must reach an agreement to this affect before any work is performed. See 29 CFR§553.23. Additionally, police and fire protection employees may not accrue more than 480 hours of compensatory time under this provision. Id.

This is another area in which experienced legal counsel should be sought, to minimize potential overtime liability.

VI. SPECIAL ISSUES RELATED TO SEVERANCE OF NEW MEXICO PUBLIC SCHOOL EMPLOYMENT            

Terms, conditions and procedures related to New Mexico public school employment are provided for in the School Personnel Act, NMSA §§ 22-10A-1 et seq.

School employees, even where unionized, are uniformly employed under individual employment contracts. Typically, these are annual contracts and they are generally offered toward the end of the school year, and must be accepted, signed and returned by a certain date. Id., -21, -23. If employees are not offered a written contract for the ensuing year, meaning an offer of reemployment, they must instead be provided a written notice of termination. Id., -22. “Termination” is the act of declining to reemploy a certified employee for the ensuring school year, or severing the employment relationship with non-certified employee. Id., -2(E).

Employees with fewer than three years of consecutive service can be terminated for any reason the school deems sufficient, and no reason need be provided except upon request of the employee. Id., -24(A). Employees with three or more years of consecutive employment with a school district or a state agency may only be terminated for just cause, meaning a reason rationally related to the employee’s competence or turpitude or the proper performance of his or her duties, but not in violation of the employee’s civil or constitutional rights. Id., -2(G), -24(D). These employees may request a statement of reasons, to which the employee may in turn respond and obtain an informal, unrecorded hearing before the local school board on the employee’s statement. Id., -24(C), (E) – (F).

In contrast to “termination,” “discharge” refers to the act of severing the employment relationship with a certified school employee prior to the expiration of the current employment contract. Id., -2(A). This may only be done for just cause under any circumstances, and will result in rights to discovery followed by a formal, recorded discharge hearing before the School Board. Id., -27

Thereafter, employees who are either terminated pursuant to § -24 or discharged pursuant to § -27 may appeal to an independent arbitrator, the decision of which will be final and binding. Appeals to an arbitrator are de novo and the burden shall b e on the local school board to show by a preponderance of the evidence that at the time notice of termination or discharge was served on the employee the governing authority had just cause to terminate or discharge the employee. Id., -25(D) and (J), -28(D).

Conclusion

We hope this information has been of some help to you in understanding the general layout of the labor/employment legal landscape, particularly in New Mexico. Although we do not serve as a lawyer or advocate in labor and employment matters, we deal in these legal areas regularly as a neutral, and believe a first step in resolving or managing conflict can be the acquisition of general legal information. Offering a variety of ADR services, we urge you to contact us to discuss whether your labor or employment dispute may be amenable to a form of alternative dispute resolution.