N.M. Stat. § 52-1-16 (2026)

A. As used in the Workers' Compensation Act, unless the context otherwise
requires, "worker" means any person who has entered into the employment of or works
under contract of service or apprenticeship with an employer, except a person whose
employment is purely casual and not for the purpose of the employer's trade or
business. The term "worker" shall include "employee" and shall include the singular and
plural of both sexes. "Worker" includes public employee, as defined in the Workers'
Compensation Act, including salaried public officers.

   B. For the purposes of the Workers' Compensation Act, an individual who performs
services as a qualified real estate salesperson shall not be treated as an employee and
the person for whom the services are performed shall not be treated as an employer.

   C. For the purpose of Subsection B of this section, a "qualified real estate
salesperson" means an individual who:

      (1)     is a licensed real estate salesperson, associate broker or broker under
contract with a real estate firm;
        (2)    receives substantially all of his remuneration, whether or not paid in cash,
for the services performed as a real estate salesperson, associate broker or broker
under contract with a real estate firm in direct relation to sales or other output, including
the performance of services, rather than to the number of hours worked; and

       (3)      performs services pursuant to a written contract between himself and the
person for whom the services are performed, and the contract provides that the
individual will not be treated as an employee with respect to such services.

History: 1953 Comp., § 59-10-12.9, enacted by Laws 1965, ch. 295, § 9; 1979, ch. 199,
§ 3; 1986, ch. 17, § 1; 1989, ch. 263, § 12.

                                      ANNOTATIONS

Cross references. — For work not casual employment, see 52-1-22 NMSA 1978.

                          I.      GENERAL CONSIDERATION.

Basic purpose of the Workmen's [Workers'] Compensation Act is to ensure that
industry carries the burden of personal injuries suffered by workmen in the course of
their employment, and consequently, the relationship of the parties is not to be
determined from the name attached to it by them, but from the consequences which the
law imputes to their agreement to prevent evasion of the obligations which the act
imposes upon employers. Yerbich v. Heald, 1976-NMCA-026, 89 N.M. 67, 547 P.2d 72.

What is reasonably incident to the employment depends upon the practices
permitted in the particular employment and on the customs of the employment
environment generally. Whitehurst v. Rainbo Baking Co., 1962-NMSC-126, 70 N.M.
468, 374 P.2d 849 (decided under former law).

Meaning of "work" under this act differs from meaning under Minimum Wage Act.
— In arguing the meaning of "work" in the context of the Minimum Wage Act, workmen's
[workers'] compensation cases should not be considered because they deal with
statutory definitions which differ from the definitions in the Minimum Wage Act. Garcia v.
American Furniture Co., 1984-NMCA-090, 101 N.M. 785, 689 P.2d 934, cert. denied,
101 N.M. 686, 687 P.2d 743 and 102 N.M. 7, 690 P.2d 450.

Definition of "workman" [worker] must be satisfied for Act to apply. — Although a
school admitted that a student was acting as its agent or employee when an accident
occurred, this admission does not by itself invoke the Workmen's [Workers']
Compensation Act if the Act's statutory definition of a "workman" [worker] is not
otherwise satisfied. Trembath v. Riggs, 1983-NMCA-152, 100 N.M. 615, 673 P.2d 1348,
cert. denied, 101 N.M. 11, 677 P.2d 624, overruled on other grounds by Dupper v.
Liberty Mut. Ins. Co., 1987-NMSC-007, 105 N.M. 503, 734 P.2d 743.
The words "employer and employee" as used in the New Mexico Workmen's
[Workers'] Compensation Act are used in their natural sense and intended to describe
the conventional relation between the employer who pays wages to an employee for his
labor. Perea v. Board of Torrance Cnty. Comm'rs, 1967-NMSC-056, 77 N.M. 543, 425
P.2d 308; Dibble v. Garcia, 1982-NMCA-040, 98 N.M. 21, 644 P.2d 535, cert. denied,
98 N.M. 50, 644 P.2d 1039.

Statutory definition of workman [worker] does not include public officer or
official, and election judge who was injured delivering ballot boxes was ruled a public
officer and barred from collecting workmen's [workers'] compensation. Candelaria v.
Board of Cnty. Comm'rs, 1967-NMSC-037, 77 N.M. 458, 423 P.2d 982 (decided under
former law).

Volunteer is not entitled to benefits of workmen's [workers'] compensation laws.
Jelso v. World Balloon Corp., 1981-NMCA-138, 97 N.M. 164, 637 P.2d 846.

Appellant must be employed by county in order to sue county under the
Workmen's [Workers'] Compensation Act. Perea v. Board of Torrance Cnty. Comm'rs,
1967-NMSC-056, 77 N.M. 543, 425 P.2d 308.

Question of fact distinguished from conclusion of law. — The question of whether
the claimant worked for one or the other of the corporations is one of fact, as
distinguished from the question of whether the relationship of master and servant or that
of an independent contractor existed, which is a conclusion of law. Creley v. Western
Constructors, Inc., 1969-NMSC-004, 79 N.M. 727, 449 P.2d 329.

It is for trier of facts to determine weight to be given to evidence and the credibility
of witnesses. Creley v. Western Constructors, Inc., 1969-NMSC-004, 79 N.M. 727, 449
P.2d 329.

Workmen's [Workers'] Compensation Act is based upon employer-employee
relationship. Perea v. Board of Torrance Cnty. Comm'rs, 1967-NMSC-056, 77 N.M.
543, 425 P.2d 308.

Action against co-employee or person other than employer. — Prior to the 1971
amendment it was held that a co-employee was "a person other than the employer"
against whom a negligence action for damages might be maintained. Hockett v.
Chapman, 1961-NMSC-163, 69 N.M. 324, 366 P.2d 850.

Liability of partnership's insurer for injuries to working partner. — Under the terms
of the New Mexico Compensation Act, if a partnership, as employer, was not liable for
injuries to a working partner then its insurer was not liable under the act through a
contractual relationship between the insurance agent, the insurance company and the
partnership. Jernigan v. Clark & Day Exploration Co., 1959-NMSC-033, 65 N.M. 355,
337 P.2d 614 (decided under former law).
As working partner and, hence, occupying status of employer, plaintiff was not
covered by the Workmen's [Workers'] Compensation Act of New Mexico. Jernigan v.
Clark & Day Exploration Co., 1959-NMSC-033, 65 N.M. 355, 337 P.2d 614 (decided
under former law).

Illegally employed minor not covered and may sue. — A contract, the performance
of which violates a penal statute, is illegal and at least voidable, and will not provide a
basis for the assertion of rights under such contract, particularly by the party upon
whom the statute imposes the penalty; therefore, an illegally employed minor is not
covered by the act and therefore may pursue a common-law action. Maynerich v. Little
Bear Enters., Inc., 1971-NMCA-079, 82 N.M. 650, 485 P.2d 984.

Coffee breaks consented to by employer. — Coffee breaks for the personal comfort
of employees during working hours are consented to by the employer. Whitehurst v.
Rainbo Baking Co., 1962-NMSC-126, 70 N.M. 468, 374 P.2d 849 (decided under
former law).

                             II.    EMPLOYMENT STATUS.

Employer-employee relationship, to which the act applies, is one created by
contract between the parties; consequently, if the employer in this case seeks to avail
itself of the Workmen's [Workers'] Compensation Act as a bar to a common-law action,
then it must show a valid contract of employment between it and the minor employee.
Maynerich v. Little Bear Enters., Inc., 1971-NMCA-079, 82 N.M. 650, 485 P.2d 984.

Primary test to determine employment status is the right to control the details of the
work. Barger v. Ford Sales Co., 1976-NMCA-014, 89 N.M. 25, 546 P.2d 873, cert.
denied, 89 N.M. 206, 549 P.2d 284.

The principal test for determining whether an employer-employee relationship exists, as
opposed to an independent contractor relationship, is whether the employer has the
right to control the details of the work. Jelso v. World Balloon Corp., 1981-NMCA-138,
97 N.M. 164, 637 P.2d 846.

The right to control is a test for determining an employer-employee relationship. Dibble
v. Garcia, 1982-NMCA-040, 98 N.M. 21, 644 P.2d 535, cert. denied, 98 N.M. 50, 644
P.2d 1039.

One of the tests of relation of employer and employee is that the employer retains
the right to direct the manner in which his business shall be done and the result to be
accomplished. Perea v. Board of Torrance Cnty. Comm'rs, 1967-NMSC-056, 77 N.M.
543, 425 P.2d 308.

Factors considered in determining right to control. — Factors to be considered in
determining whether the right to control exists are: (1) the right or exercise of control of
the details of the work; (2) the method of payment; (3) the furnishing of equipment; and
(4) the right to fire. Dibble v. Garcia, 1982-NMCA-040, 98 N.M. 21, 644 P.2d 535, cert.
denied, 98 N.M. 50, 644 P.2d 1039.

Professionals. — The control test is not helpful in determining the employment status
of a professional, such as a doctor, lawyer, nurse, or accountant. A professional who
gives full-time, exclusive services to a business should not be excluded from the
definition of "employee" under the Workers' Compensation Act simply because no one
in the business has the skills to oversee the details of the professional's work.
Whittenberg v. Graves Oil and Butane Co., Inc., 1991-NMCA-142, 113 N.M. 450, 827
P.2d 838, cert. denied, 113 N.M. 352, 826 P.2d 573 (1992).

Power of discharge is only one item to be considered in determining whether an
individual is an employee and whether that item is of primary importance depends on
the circumstances of the case. Yerbich v. Heald, 1976-NMCA-026, 89 N.M. 67, 547
P.2d 72.

Method of payment is merely one of the subordinate factors considered in the right
to control test. This factor can be outweighed by other factors. The mere payment of
wages is not sufficient to establish the employer and employee relationship. Perea v.
Board of Torrance Cnty. Comm'rs, 1967-NMSC-056, 77 N.M. 543, 425 P.2d 308.

Length of time in work does not change test. — Whether the injured person had
been doing this work for five or 50 minutes, and whether he would have continued in
this work for a shorter or greater length of time in no way changes the test. The test is:
whose work was being done at the time of the accident? Barger v. Ford Sales Co.,
1976-NMCA-014, 89 N.M. 25, 546 P.2d 873, cert. denied, 89 N.M. 206, 549 P.2d 284.

Limited control usually creates independent contractor relationship. — Where
control is limited to the ultimate results to be achieved under a contract, the relationship
is usually that of an independent contractor. Dibble v. Garcia, 1982-NMCA-040, 98 N.M.
21, 644 P.2d 535, cert. denied, 98 N.M. 50, 644 P.2d 1039.

Mutuality of obligations and agreement required. — To establish the relationship of
employer-employee, there must exist a mutuality of obligations and agreement. There
must be present both a duty of employee to perform services subject to an employer's
right to control the details of performance, and the worker's right to receive
compensation. Jelso v. World Balloon Corp., 1981-NMCA-138, 97 N.M. 164, 637 P.2d
846.

Mutual assent required. — Existence of the relationship of employer and employee
depends upon a contract of employment and cannot exist without mutual assent,
express or implied. Jelso v. World Balloon Corp., 1981-NMCA-138, 97 N.M. 164, 637
P.2d 846.
"Relative nature of the work" test is another method for determining an employer-
employee relationship. Dibble v. Garcia, 1982-NMCA-040, 98 N.M. 21, 644 P.2d 535,
cert. denied, 98 N.M. 50, 644 P.2d 1039.

As to the factors which make up the "relative nature of the work" test, see Dibble v.
Garcia, 1982-NMCA-040, 98 N.M. 21, 644 P.2d 535, cert. denied, 98 N.M. 50, 644 P.2d
1039.

Hope of future employment alone is insufficient evidence to show a contract for
hire. Jelso v. World Balloon Corp., 1981-NMCA-138, 97 N.M. 164, 637 P.2d 846.

Findings to support conclusion of employee. — The trial court's findings that
deceased was paid by the hour, had taxes withheld from his pay, had entered into a
contract of hire and could be discharged any time defendant felt his work was
unsatisfactory, support the conclusion that deceased was defendant's employee and
therefore covered under the Workmen's [Workers'] Compensation Act. Abbott v.
Donathon, 1974-NMCA-073, 86 N.M. 477, 525 P.2d 404.

There is no single or sure criterion affording test of when relationship is that of
employee and when that of an independent contractor, and "a fact found controlling in
one combination may have a minor importance in another." Nelson v. Eidal Trailer Co.,
1954-NMSC-051, 58 N.M. 314, 270 P.2d 720 (decided under former law).

Principal factor to be considered in determining whether individual is employee or
an independent contractor in workmen's [workers'] compensation is the power on the
part of the employer to control, which may be inferred from: (1) control of the manner
and means of performance, (2) the right to discharge at will and (3) the method of
payment (i.e., lump-sum, piece-rate, periodic wages), among other things. A second
factor to be considered is whose work is being done; that is, is it a separate piece of
work or an integral part of the employer's business. Consequently, summary judgment
in favor of defendant, owner of a lumber business, was reversed so the relationship
between him and the owner of a log-hauling truck driven by deceased could be
determined at trial, so as to determine whether plaintiff's deceased was an employee of
the lumber business. Yerbich v. Heald, 1976-NMCA-026, 89 N.M. 67, 547 P.2d 72.

Chief consideration which determines one to be independent contractor is the fact
that the employer has no right of control as to the mode of doing the work contracted
for. Shipman v. Macco Corp., 1964-NMSC-091, 74 N.M. 174, 392 P.2d 9 (decided
under former law).

Company not liable for death of independent contractor's helper. — Where
contract between truck loader and manufacturing company left the time and manner of
performance and the hiring and payment of extra help to the discretion of the loader,
loader was an independent contractor, and manufacturer was not liable for workmen's
[workers'] compensation for death of loader's employee. Nelson v. Eidal Trailer Co.,
1954-NMSC-051, 58 N.M. 314, 270 P.2d 720 (decided under former law).
Military institute instructor not employee when piloting rented aircraft. —
Evidence supported findings that army sergeant who had instructed in military institute's
department of military science and tactics was not an employee of the institute with
respect to his piloting of a rented aircraft in a tactical exercise which crashed resulting in
his death. Lance v. N.M. Military Inst., 1962-NMSC-066, 70 N.M. 158, 371 P.2d 995.

Messenger who delivered ballot boxes to county clerk was independent
contractor, and the statutory definition of workman [worker] does not include an
independent contractor. Messenger, therefore, was not an employee, and not entitled to
workmen's [workers'] compensation. Candelaria v. Board of Cnty. Comm'rs, 1967-
NMSC-037, 77 N.M. 458, 423 P.2d 982.

Citizen aiding peace officers entitled to benefits. — Aiding peace officers in quelling
riots and coping with unlawful assemblies and other dangerous situations where citizen
has been impressed into service entitles the citizen to compensation benefits if he is
injured in the course of rendering such assistance. Eaton v. Bernalillo Cnty., 1942-
NMSC-040, 46 N.M. 318, 128 P.2d 738.

Injured work-release program prisoner deemed "employee". — A prisoner who
voluntarily participated in a work-release program and was injured while under the
direction of a private business was an employee of that business and thus entitled to
workers' compensation benefits. Benavidez v. Sierra Blanca Motors, 1995-NMCA-140,
120 N.M. 837, 907 P.2d 1018, rev'd in part on other grounds, 1996-NMSC-045, 122
N.M. 209, 922 P.2d 1205.

Claimant, an inmate in the custody of the New Mexico department of corrections, who
was injured while participating in an inmate work-release program, qualified as an
"employee" eligible for benefits from his employer under this article. Benavidez v. Sierra
Blanca Motors, 1998-NMCA-070, 125 N.M. 235, 959 P.2d 569.

Inmate whose work-release assignment was comprised of six weeks of a regular, forty
hour per week schedule was not a "purely casual" worker within the meaning of this
section, and was not disqualified from workers' compensation benefits in the event of
injury. Benavidez v. Sierra Blanca Motors, 1998-NMCA-070, 125 N.M. 235, 959 P.2d
569.

                              III.    SPECIAL EMPLOYEE.

Controlling factor whether servant of employer can be special servant of another.
— In the case of Weese v. Stoddard, 1956-NMSC-117, 63 N.M. 20, 312 P.2d 545, in
considering the test for determining whether a general servant of one employer can
become the special or particular servant of another, the court said: "The controlling
factor in determining this question is: Whose work is being performed and who
controlled and directed the agent in his work?" Brown v. Pot Creek Logging & Lumber
Co., 1963-NMSC-172, 73 N.M. 178, 386 P.2d 602 (decided under former law).
Special employee of one though employed by another. — Where plaintiff performed
the duties of defendant, although employed by another company, for compensation, and
injured himself, and was under the control and supervision of defendant, he is a
workman [worker] under this section and became a special employee of defendant.
Length of time of employment is not the test: the test is whose work is being done at the
time of the accident, and who has the right to control the details of the work. Because
plaintiff performed defendant's activities and duties, it was not a casual employment and
was not an exception to this rule. Barger v. Ford Sales Co., 1976-NMCA-014, 89 N.M.
25, 546 P.2d 873, cert. denied, 89 N.M. 206, 549 P.2d 284.

Special temporary employees could recover. — Where a buyer of water from
another state loaned his employees to the seller in this state to repair a well, the
employees became special temporary employees of seller and could recover for injuries
sustained during the repair work under the compensation law only. The act extended to
persons not employees at common law. Jones v. George F. Getty Oil Co., 92 F.2d 255
(10th Cir. 1937), cert. denied, 303 U.S. 644, 58 S. Ct. 644, 82 L. Ed. 1106 (1938)
(decided under former law).

Employee injured during off-duty hours while working for another. — Where
claimant was regularly employed by the defendant corporation, but the particular work
or employment giving rise to injury was undertaken on off-duty hours from the regular
job, he was doing work for another corporation away from the premises of his regular
employer and was so engaged when his injury occurred, then claimant was a special
employee of the other corporation. Brown v. Pot Creek Logging & Lumber Co., 1963-
NMSC-172, 73 N.M. 178, 386 P.2d 602 (decided under former law).

Special employee negligence action barred by act. — Where plaintiff employee of oil
well driller was asked by employee of driller hired to supply cement for an oil well to help
unclog hose and was injured, he was a special employee and his negligence action was
barred under Workmen's [Workers'] Compensation Act. Wuertz v. Howard, 1966-
NMSC-264, 77 N.M. 228, 421 P.2d 441.

Basis for determining whether one is special employee so that negligence action is
barred by Workmen's [Workers'] Compensation Act is: whose is the work being done?
In answering this question, the power to control the work is of great importance. Wuertz
v. Howard, 1966-NMSC-264, 77 N.M. 228, 421 P.2d 441.

Status of special employment is not dependent on the accident happening on the
premises of the special employer. Wuertz v. Howard, 1966-NMSC-264, 77 N.M. 228,
421 P.2d 441.

Consent does not bar employee from becoming special employee of another.
Wuertz v. Howard, 1966-NMSC-264, 77 N.M. 228, 421 P.2d 441.

Novice at a monastery was not a "worker" for purposes of workers' compensation.
Joyce v. Pecos Benedictine Monastery, 1995-NMCA-054, 119 N.M. 764, 895 P.2d 286.
Casual employment not for purpose of employer's business. — Where plaintiff was
hired as an extra man for a specific day, did not know for which corporation he was
employed and was injured while performing work for the benefit of a corporation other
than that by which he was hired, plaintiff was a person whose employment was "purely
casual" and not for the purpose of the employer's trade or business. Barber v. Los
Alamos Beverage Corp., 1959-NMSC-007, 65 N.M. 323, 337 P.2d 394 (decided under
former law).

Not casual employment where necessary part of process. — Where the decedent
was hauling away dirt obtained from the excavation of a pond by defendant, and the
hauling of dirt was a necessary part of the process of excavation, the decedent was not
a casual employee. This work, which was not casual employment under 52-1-22 NMSA
1978, was also not casual employment under this section. Abbott v. Donathon, 1974-
NMCA-073, 86 N.M. 477, 525 P.2d 404.

Principal factors when performing duties for state court, in determining the status
of an employee, are the power of appointment and removal and the fixing of salaries,
not the fact that the employee may be paid from the fund of a lesser political entity.
Perea v. Board of Torrance Cnty. Comm'rs, 1967-NMSC-056, 77 N.M. 543, 425 P.2d
308.

Deputy district court clerk not county employee. — In workmen's [workers']
compensation suit, plaintiff, a deputy district court clerk and juvenile probation officer
who was appointed by the district court judge and was under the supervision and
control of the district judge and district court clerk, was not considered a county
employee under the Workmen's [Workers'] Compensation Act where county
commissioners neither appointed him nor exercised any supervision or control of his
duties, notwithstanding the argument that the district court fund was a county fund.
Perea v. Board of Torrance Cnty. Comm'rs, 1967-NMSC-056, 77 N.M. 543, 425 P.2d
308.

Public officers not entitled to benefits. — Prior to 1972, members of the New Mexico
state labor and industrial commission, the state fair commission, the racing commission
and the livestock board, were all public officers, not employees, and not entitled to
benefits under this act. 1968 Op. Att'y Gen. No. 68-109 (rendered under former law).

Mounted patrol members eligible. — Members of the mounted patrol who have been
duly called out by members of the state police are eligible for workmen's [workers']
compensation coverage. Whether they are in fact covered by the workmen's [workers']
compensation policy now in effect for the state police is a question that can only be
answered by reference to the policy. If the policy covers only regularly appointed, active
members of the state police, it probably does not cover persons who are deputized to
assist the state police. On the other hand, if it includes all persons who may be called
out to assist the state police, such as members of the mounted patrol or members of the
state police reserve, then such persons are covered. 1960 Op. Att'y Gen. No. 60-239
(opinion rendered under former law).
Law reviews. — For annual survey of New Mexico law relating to civil procedure, see
13 N.M.L. Rev. 251 (1983).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation
§ 116 et seq.

Employees within provisions applicable to operation of railroads, 7 A.L.R. 1160.

Compensation for death of or injury to peace officer employed in private plant, 8 A.L.R.
190.

Constitutionality of provisions of Workmen's Compensation Act applicable to public
officers or employees, 53 A.L.R. 1290.

Compensation for injuries received in connection with air navigation, 83 A.L.R. 403, 99
A.L.R. 173, 155 A.L.R. 1026.

Needy persons put to work by municipality or other public body as means of extending
aid to them as within protection of compensation act, 96 A.L.R. 1154, 127 A.L.R. 1483.

Musicians and other entertainers as employees of hotel or restaurant in which they
perform, within Workmen's Compensation Act, 158 A.L.R. 915, 172 A.L.R. 325.

Constitutional or statutory provision referring to "employees" as including public officers,
5 A.L.R.2d 415.

Workers' compensation: student athlete as "employee" of college or university providing
scholarship or similar financial assistance, 58 A.L.R.4th 1259.

Workers' compensation: injuries incurred during labor activity, 61 A.L.R.4th 196.

Ownership interest in employer business as affecting status as employee for workers'
compensation purposes, 78 A.L.R.4th 973.

Workers' compensation: compensability of injury during tryout, employment test, or
similar activity designed to determine employability, 8 A.L.R.5th 798.

99 C.J.S. Workmen's Compensation §§ 59 to 119.