Hiring New Employees in New Mexico: Legal Guide for Employers

Create a clear job description that complies with New Mexico employment laws. Ensure the posting doesn't contain discriminatory language and includes essential job functions, required qualifications, and whether the position is exempt or non-exempt under the Fair Labor Standards Act (FLSA).

Develop an application form that complies with New Mexico law. Avoid questions about age, race, religion, national origin, disability, or other protected characteristics. Include a statement that New Mexico is an 'at-will' employment state. Ensure compliance with the New Mexico Criminal Offender Employment Act, which restricts inquiries about arrests and convictions.

When interviewing, avoid questions related to protected characteristics. Focus on job-related qualifications and skills. Document the selection process to demonstrate non-discriminatory hiring practices in case of future disputes.

Draft an offer letter that includes position title, start date, salary/wage, benefits summary, employment classification (exempt/non-exempt), at-will employment statement, and contingencies (background check, drug testing if applicable). In New Mexico, be aware of the state minimum wage ($12.00/hour as of 2023) and ensure compliance.

If using a formal employment contract rather than an offer letter, include all terms of employment including duties, compensation, benefits, term of employment (if not at-will), termination conditions, confidentiality provisions, and dispute resolution procedures. Note that most New Mexico employment is at-will unless specifically contracted otherwise.

Create an NDA to protect confidential business information. Ensure it's reasonable in scope and duration to be enforceable in New Mexico. Specify what information is considered confidential and the employee's obligations regarding this information.

If using a non-compete, ensure it's narrowly tailored in geographic scope, duration, and prohibited activities to be potentially enforceable in New Mexico. Note that New Mexico courts generally disfavor non-compete agreements and will only enforce them if they protect legitimate business interests and are reasonable.

Create a form that complies with the Fair Credit Reporting Act (FCRA) and New Mexico law. Obtain written consent before conducting background checks. Be aware of New Mexico's Criminal Offender Employment Act which limits how criminal history information can be used in hiring decisions.

After receiving signed authorization, conduct background check in compliance with FCRA and New Mexico law. If you decide not to hire based on background check results, follow FCRA adverse action procedures, including pre-adverse action and adverse action notices.

Have the new employee complete Section 1 of Form I-9 on their first day of work. As the employer, complete Section 2 within 3 business days of the employee's start date after physically examining acceptable identity and employment authorization documents. Store I-9 forms separately from personnel files.

Have the employee complete the federal W-4 form to determine federal income tax withholding. Keep this form on file as long as it remains in effect.

Have the employee complete New Mexico's state tax withholding form (Form NM W-4) to determine state income tax withholding amounts.

Create a form for employees to authorize direct deposit of their paychecks. Include fields for bank account and routing numbers, and specify whether the entire check or partial amounts will be deposited.

Create a form to collect emergency contact information from the new employee. Include fields for multiple contacts and their relationship to the employee.

Provide forms for enrollment in company benefits programs such as health insurance, retirement plans, and other optional benefits. Note that in New Mexico, employers with three or more employees must provide workers' compensation insurance.

Create or customize an employee handbook that includes company policies, procedures, and expectations. Include information on New Mexico-specific requirements such as paid sick leave under the Healthy Workplaces Act (effective July 2022), which requires employers to provide employees with up to 64 hours of paid sick leave annually.

Complete and submit the New Mexico New Hire Reporting Form to the New Mexico New Hire Directory within 20 days of hire. This can be done online through the New Mexico New Hire Reporting Center. This is required for child support enforcement.

If not already registered, register with the New Mexico Department of Workforce Solutions for unemployment insurance. Employers in New Mexico are subject to unemployment insurance tax if they pay wages of $450 or more in a calendar quarter.

Obtain workers' compensation insurance if you have three or more employees in New Mexico. This is mandatory under New Mexico law. Contact the New Mexico Workers' Compensation Administration for guidance.

Display all federally required posters (FLSA, FMLA, OSHA, etc.) and New Mexico-specific posters including Minimum Wage Act, Workers' Compensation Act, Human Rights Act, and Paid Sick Leave notices. These must be displayed in a conspicuous location where employees can easily see them.

Schedule and conduct an orientation session to review company policies, procedures, benefits, and expectations. Have the employee sign acknowledgment forms for receipt of the employee handbook and other key policies.

Add the employee to your payroll system. Ensure proper setup of federal, state, and local tax withholding based on the W-4 and NM W-4 forms. New Mexico has state income tax that must be withheld from employee paychecks.

While E-Verify is not mandatory for all employers in New Mexico, certain state contractors may be required to use it. Research whether your business falls under any E-Verify requirements based on state contracts or other factors.