A. No person or employer shall discharge or in any manner discriminate against any employee because the employee has filed a complaint or instituted or caused to be instituted a proceeding under or related to the Occupational Health and Safety Act or has testified or is about to testify in any such proceeding or because of the exercise by the employee on behalf of himself or others of any right afforded by the Occupational Health and Safety Act.
B. Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this section may, within thirty days after such alleged violation occurs, file a complaint with the secretary, in writing and acknowledged by the employee, alleging such discrimination. Upon receipt of the complaint, the secretary shall cause such investigation to be made as he deems appropriate. Within sixty days of the receipt of a complaint filed under this section, the secretary shall notify the complainant of his determination. If, upon such investigation, the secretary determines that the provisions of this section have been violated, he shall file a petition in the district court for the political subdivision in which the alleged violation occurred to restrain the violation of Subsection A of this section and for other appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.
History: 1953 Comp., § 59-14-24, enacted by Laws 1975, ch. 290, § 15; 1993, ch. 322, § 21.
ANNOTATIONS
The 1993 amendment, effective April 8, 1993, substituted “secretary” for “director” in four places in Subsection B and made minor stylistic changes in Subsections A and B.
Public policy. — This section, prohibiting discrimination against employees for filing safety complaints, constitutes a statement of public policy, the violation of which may be used to establish a claim for retaliatory discharge. Sandoval v. N.M. Tech. Grp., 174 F.Supp.2d 1224 (D.N.M. 2001).
Common-law remedy for wrongful discharge. — This section does not provide the exclusive remedy for an employee alleging wrongful discharge in retaliation for reporting safety violations. An employee also has a common-law remedy for wrongful discharge. Gutierrez v. Sundancer Indian Jewelry, Inc., 1993-NMCA-156, 117 N.M. 41, 868 P.2d 1266, cert. denied, 117 N.M. 121, 869 P.2d 820 (1994).
Retaliatory discharge action. — An instruction to the jury in an action for retaliatory discharge properly quoted this section as a statement of public policy whose violation may be used to establish a retaliatory discharge. Weidler v. Big J Enters., Inc., 1998-NMCA-021, 124 N.M. 591, 953 P.2d 1089.
Law reviews. — For article, “Defending the Abusively Discharged Employee: In Search of a Judicial Solution,” see 12 N.M.L. Rev. 711 (1982).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Liability for discharge of at-will employee for in-plant complaints or efforts relating to working conditions affecting health or safety, 35 A.L.R.4th 1031.
Liability for retaliation against at-will employee for public complaints or efforts relating to health or safety, 75 A.L.R.4th 13.
Pre-emption by Workers’ Compensation Statute of employee’s remedy under state “Whistleblower” Statute, 20 A.L.R.5th 677.
After-acquired evidence of employee’s misconduct as barring or limiting recovery in action for wrongful discharge, 34 A.L.R.5th 699.
Excessiveness or adequacy of damages for wrongful termination of at-will employee under state law, 86 A.L.R.5th 397.
Who are “public employers” or “public employees” within the meaning of state whistleblower protection acts, 90 A.L.R.5th 687.
Common law retaliatory discharge of employee for refusing to perform or participate in unlawful or wrongful acts, 104 A.L.R.5th 1.
Common law retaliatory discharge of employee for disclosing unlawful acts or other misconduct of employer or fellow employees, 105 A.L.R.5th 351.
Federal pre-emption of whistleblower’s state-law action for wrongful retaliation, 99 A.L.R. Fed. 775.
What constitutes appropriate relief for retaliatory discharge under § 11(c) of Occupational Safety and Health Act (OSHA) (29 USCS § 660(c)), 134 A.L.R. Fed. 629.