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 [52-1-1 NMSA 1978] and the New Mexico Occupational Disease Disablement Law [52-3-1 NMSA 1978], 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.
Notes to Decisions
Discharge.
Where there was a good deal of evidence regarding procedures approved by the city for rehiring its injured workers and regarding the lackadaisical efforts put forth by different city officials to follow those procedures, the workers’ compensation judge could have concluded that the city’s actions were caused by the employee’s claim, in violation of 52-1-28.2 NMSA 1978. Lucero v. City of Albuquerque, 2002-NMCA-034, 132 N.M. 1, 43 P.3d 352, 2002 N.M. App. LEXIS 10 (N.M. Ct. App.), cert. denied, 131 N.M. 737, 42 P.3d 842, 2002 N.M. LEXIS 97 (N.M. 2002).
Because New Mexico was an employment at will state, an employee or his employer could terminate employment for any reason or no reason at all as long as there was no contract for a definite term or the dismissal was not predicated upon a fraudulent basis, and neither the workmen’s compensation laws nor the human rights act had any statutory provisions touching on the issue of wrongful or retaliatory discharge based on an award of workmen’s compensation; thus an employee could not recover damages for his employer’s alleged retaliatory, wrongful discharge action due to the employee’s assertion of his right to recover workmen’s compensation. Bottijliso v. Hutchison Fruit Co., 1981-NMCA-101, 96 N.M. 789, 635 P.2d 992, 1981 N.M. App. LEXIS 789 (N.M. Ct. App. 1981), overruled as stated in Boudar v. E G & G, Inc., 1986-NMSC-092, 105 N.M. 151, 730 P.2d 454, 1986 N.M. LEXIS 3099 (N.M. 1986), overruled, Michaels v. Anglo Am. Auto Auctions, 1994-NMSC-015, 117 N.M. 91, 869 P.2d 279, 1994 N.M. LEXIS 52 (N.M. 1994).
Rehire.
The workers’ compensation judge’s failure to follow the appellate court’s mandate, that the employer had to rehire the worker, was erroneous; the appellate court remanded again with instructions to the WCJ to order the employer to hire the worker. Martinez v. Pojoaque Gaming, Inc., 2011-NMCA-103, 150 N.M. 629, 264 P.3d 725, 2011 N.M. App. LEXIS 120 (N.M. Ct. App.), cert. denied, 269 P.3d 903, 2011 N.M. LEXIS 405 (N.M. 2011), cert. denied, 269 P.3d 903, 2011 N.M. LEXIS 393 (N.M. 2011).
Sovereign immunity waived.
Corporation that was owned by a Native American Indian tribe and that owned a casino, where a worker had been employed, had waived its sovereign immunity and thus, a workers’ compensation judge had the authority to require the corporation to rehire the worker. Martinez v. Cities of Gold Casino, 2009-NMCA-087, 146 N.M. 735, 215 P.3d 44, 2009 N.M. App. LEXIS 69 (N.M. Ct. App.), cert. denied, 147 N.M. 361, 223 P.3d 358, 2009 N.M. LEXIS 1061 (N.M. 2009).