2019 New Mexico Statutes
Chapter 52 - Workers' Compensation
Article 1 - Workers' Compensation
Section 52-1-28.2 - Retaliation against employee seeking benefits; civil penalty.

Universal Citation: NM Stat § 52-1-28.2 (2019)

A. An employer shall not discharge, threaten to discharge or otherwise retaliate in the terms or conditions of employment against a worker who seeks workers' compensation benefits for the sole reason that that employee seeks workers' compensation benefits.

B. Any person who discharges a worker in violation of Subsection A of this section shall rehire that worker pursuant to the provisions of the Workers' Compensation Act and the New Mexico Occupational Disease Disablement Law, provided the worker agrees to be rehired.

C. The director or a workers' compensation judge shall impose a civil penalty of up to five thousand dollars ($5,000) for each violation of the provisions of Subsection A or B of this section.

D. The civil penalty shall be deposited in the workers' compensation administration fund.

History: Laws 1990 (2nd S.S.), ch. 2, § 32.

ANNOTATIONS

Effective dates. — Laws 1990 (2nd S.S.), ch. 2, § 153 Laws 1990 (2nd S.S.), ch. 2, § 32 effective January 1, 1991.

Cross references. — For the New Mexico Occupational Disease Disablement Law, see 52-3-1 NMSA 1978 and compiler's notes thereto.

Rehiring is mandatory. — Where the worker was fired from a tribal casino in retaliation for filing a worker's compensation claim, Subsection B of Section 52-1-28.2 NMSA 1978 mandated that the district court order the employer to rehire the worker. Martinez v. Pojoaque Gaming, Inc., 2011-NMCA-103, 150 N.M. 629, 264 P.3d 725, cert. denied, 2011-NMCERT-009, 269 P.3d 903.

Where the worker was fired from a tribal casino in retaliation for filing a worker's compensation claim; an independent tribal gaming commission, which was responsible for issuing gaming licenses that certain employees were required to possess pursuant to the gaming compact with the state, had revoked the worker's gaming license; the employer refused to rehire worker, because there were no jobs at the casino that did not require a gaming license and worker did not have a gaming license; and because the district court determined that it did not have jurisdiction to require the tribal gaming commission to issue a gaming license to worker, and the district court did not order the tribal commission to rehire worker, Subsection B of Section 52-1-28.2 NMSA 1978 does not recognize that an employer may have legitimate business reasons for not rehiring an employee or allow consideration of any other remedies as a substitution for rehiring and the district court was required under Subsection B of Section 52-1-28.2 NMSA 1978 to order the tribal casino to rehire worker. Martinez v. Pojoaque Gaming, Inc., 2011-NMCA-103, 150 N.M. 629, 264 P.3d 725, cert. denied, 2011-NMCERT-009, 269 P.3d 903.

Pre-judgment interest. — Where worker was awarded damages for bad faith and wrongful termination under the Workers' Compensation Act and the employer did not cause any unreasonable delay in the workers' compensation proceedings or make any unreasonable settlement offers prior to trial, the trial court did not abuse its discretion in denying worker's request for pre-judgment interest. Martinez v. Pojoaque Gaming, Inc., 2011-NMCA-103, 150 N.M. 629, 264 P.3d 725, cert. denied, 2011-NMCERT-009, 269 P.3d 903.

Post-judgment interest. — Where worker was awarded damages because the employer intentionally retaliated against worker for filing a workers' compensation claim, the actions of the employer constituted bad faith, and the employer's actions amounted to fraud, malice, oppression or willful, wanton or reckless disregard of the rights of worker, the district court was required to award worker post-judgment interest at the highest rate specified in Section 56-8-4 NMSA 1978 of fifteen percent. Martinez v. Pojoaque Gaming, Inc., 2011-NMCA-103, 150 N.M. 629, 264 P.3d 725, cert. denied, 2011-NMCERT-009, 269 P.3d 903.

Independent retaliatory discharge action allowed. — An employee who alleges that he or she was wrongfully discharged in retaliation for filing a workers' compensation action has a cause of action for damages independent from that set out in this section. Michaels v. Anglo Am. Auto Auctions, Inc., 1994-NMSC-015, 117 N.M. 91, 869 P.2d 279.

Law reviews. — For survey of 1990-91 workers' compensation law, see 22 N.M.L. Rev. 845 (1992).

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