New Mexico Statutes

N.M. Stat. § 28-23-3 (2026)

Prohibition on paying employees less for same work.

✓ current as of May 2026

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A. No employer shall discriminate, within any establishment in which such
employees are employed, between employees on the basis of sex by paying wages to
employees in the establishment at a rate less than the rate that the employer pays
wages to employees of the opposite sex in the establishment for equal work on jobs the
performance of which requires equal skill, effort and responsibility and that are
performed under similar working conditions, except where the payment is made
pursuant to a:

(1) seniority system;

(2) merit system; or

(3) system that measures earnings by quantity or quality of production.

B. An employer shall not reduce the wage of an employee to comply with this
section.

C. No agreement between an employer and an employee for a specific wage in
violation of the Fair Pay for Women Act shall prevent the employee from raising a claim
based on a violation of the Fair Pay for Women Act.

History: Laws 2013, ch. 12, § 3.

ANNOTATIONS

Effective dates. — Laws 2013, ch. 12 contained no effective date provision, but,
pursuant to N.M. Const., art. IV, § 23, was effective June 14, 2013, 90 days after the
adjournment of the legislature.

Fair Pay for Women Act inapplicable on federal enclave. — Congress has exclusive
authority over federal enclaves, and therefore plaintiffs’ claims were barred by the
federal enclave doctrine, where plaintiffs, employees of Sandia corporation (Sandia
labs) located on Kirtland air force base, brought state-law employment discrimination
claims against Sandia labs, a federally funded research and development contractor
operating under contract for the department of energy. Kennicott v. Sandia Corp., 314
F.Supp.3d 1142 (D.N.M. 2018)

The state of New Mexico is an employer subject to claims brought under the Fair
Pay for Women Act. — The state, an entity capable of suing and being sued, is a legal
entity that falls within the definition of “person” and thus is subject to suit for violating the
terms of the Fair Pay for Women Act. Wolinsky v. N.M. Corrections Dep’t, 2018-NMCA-
071, cert. denied.

State employee’s right to pursue wage discrimination claims. — Where plaintiff
sued her employer, the New Mexico corrections department, for sex-based pay
discrimination in violation of the Fair Pay for Women Act (FPWA), alleging that her
salary was approximately $8,000 less than that of a male employee in the same
position, the district court erred in dismissing plaintiff’s case based on the conclusion
that defendant, a state agency, was not subject to the FPWA, because the state, an
entity capable of suing and being sued, is a legal entity that falls within the definition of
“person” and thus is subject to suit for violating the terms of the FPWA; the FPWA
provides state employees the same right to pursue sex-based wage discrimination
claims that persons employed by private employers possess. Wolinsky v. N.M.
Corrections Dep’t, 2018-NMCA-071, cert. denied.

Notes of Decisions

Cited in 11 cases (4 in the last 5 years), 2017–2024 · leading case: Kennicott v. Sandia Corp., 314 F. Supp. 3d 1142 (D.N.M. 2018).

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Kennicott v. Sandia Corp., 314 F. Supp. 3d 1142 (D.N.M. 2018). · cites it 2× “Ann § 28-1-7(A) ("NMHRA"), and the New Mexico Fair Pay for Women Act, N.M. Stat. Ann. § 28-23-3 (A) ("NMFPWA"); and (iii) whether Sandia Labs made the employment decisions underlying those claims on the Kirtland Air Force Base.”

Burke v. State of New Mexico, 696 F. App'x 325 (10th Cir. 2017). “Compare N.M. Stat. Ann. § 28-23-3 (A) (FPWA prohibiting discrimination “between employees on the basis of sex by paying wages to employees in the establishment at a rate less than the rate that the employer pays wages to employees of the opposite sex in the establishment for…”

Mundell v. Acadia Hosp. Corp., 92 F.4th 1 (1st Cir. 2024). “§ 39-3-104 ; N.M. Stat. Ann. § 28-23-3 ; Or. Rev. Stat.”

Wolinsky v. N.M. Corr. Dep't, 429 P.3d 991 (N.M. Ct. App. 2018). · cites it 2× “Section 28-23-3(A). The FPWA defines "employer" as "a person employing four or more employees and any person acting for an employer.”

Burke v. State of New Mexico (D.N.M. 2020). · cites it 3× “§ 206 (d)(1) (2018); N.M. Stat. Ann. § 28-23-3 (A) (2013). To establish a prima facie case of wage discrimination under the EPA, a plaintiff must demonstrate that “(1) she was performing work which was substantially equal to that of the male employees considering the skills,…”

Goodwin v. Lujan Grisham (D.N.M. 2023). · cites it 3× “1978 § 28-23-3(A).5 The Tenth Circuit Court of Appeals has analyzed the EPA and FPWA under identical criteria derived from case law interpreting the EPA, noting that the statutes are “coterminous” and that there is “a dearth of New Mexico case law discussing the FPWA[.”

South v. Lujan (N.M. Ct. App. 2024). · cites it 2× “4 Given the lack of an internal definition, this Court determined that the Uniform 5 Statute and Rule Construction Act, which defined person as “an individual, 6 corporation, business trust, estate, trust, partnership, limited liability company, 7 association, joint venture or…”

Stout v. City of Albuquerque (D.N.M. 2019). · cites it 2× “§ 28-23-3(A), unless the wage disparity is justified by one of three permissible reasons.”

Gonzalez v. MRC Global (US) Inc. (D.N.M. 2019). · cites it 2× “NMSA § 28-23-3(A). There is little New Mexico caselaw interpreting the Fair Pay for Women Act.”

Morales v. Supreme Maint. Inc. (D.N.M. 2022). · cites it 2× “” N.M. Stat. Ann. § 28-23-3 (A). The FPWA and the EPA are “coterminous,” and courts may look to EPA legal principles to analyze FPWA claims.”

Dolin v. ThyssenKrupp Elevator Corp. (D.N.M. 2020). “§ 28-23-3 (A) (FPWA), with 29 U.S.C. § 206 (d)(1) (EPA); Dolin, at *19-21 (Judge Wormuth explaining that the FPWA does not incorporate the EPA’s catch-all affirmative defense and that, as a result, Defendant’s motion for summary judgment on Plaintiff’s FPWA claim would have been…”

— N.M. Stat. § 28-23-3(A) — 6 cases

Wolinsky v. N.M. Corr. Dep't, 429 P.3d 991 (N.M. Ct. App. 2018). “Section 28-23-3(A). The FPWA defines "employer" as "a person employing four or more employees and any person acting for an employer.”

South v. Lujan (N.M. Ct. App. 2024). “4 Given the lack of an internal definition, this Court determined that the Uniform 5 Statute and Rule Construction Act, which defined person as “an individual, 6 corporation, business trust, estate, trust, partnership, limited liability company, 7 association, joint venture or…”

Gonzalez v. MRC Global (US) Inc. (D.N.M. 2019). “NMSA § 28-23-3(A). There is little New Mexico caselaw interpreting the Fair Pay for Women Act.”

Goodwin v. Lujan Grisham (D.N.M. 2023). “1978 § 28-23-3(A).5 The Tenth Circuit Court of Appeals has analyzed the EPA and FPWA under identical criteria derived from case law interpreting the EPA, noting that the statutes are “coterminous” and that there is “a dearth of New Mexico case law discussing the FPWA[.”

Stout v. City of Albuquerque (D.N.M. 2019). “§ 28-23-3(A), unless the wage disparity is justified by one of three permissible reasons.”

— N.M. Stat. § 28-23-3(A)(1) — 2 cases

Stout v. City of Albuquerque (D.N.M. 2019). “§ 28-23-3(A), unless the wage disparity is justified by one of three permissible reasons.”

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