New Mexico Statutes
N.M. Stat. § 52-1-28.2 (2026)
Retaliation against employee seeking benefits; civil
✓ current as of May 2026
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penalty.
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.
New Mexico recognizes claims for retaliatory discharge. — An employee who
suffers a wrongful discharge in retaliation for filing a workers' compensation claim has a
cause of action independent from the relief provided in the Workers' Compensation Act.
Hartwell v. Southwest Cheese Co., 276 F.Supp.3d 1188 (D.N.M. 2016).
Law reviews. — For survey of 1990-91 workers' compensation law, see 22 N.M.L. Rev.
845 (1992).Notes of Decisions
Cited in 14
cases (4 in the last 5 years), 1992–2024 · leading case: Michaels v. Anglo Am. Auto Auctions, Inc., 869 P.2d 279 (N.M. 1994).
Michaels v. Anglo Am. Auto Auctions, Inc., 869 P.2d 279 (N.M. 1994). “Today we decide whether an employee who alleges that he or she was wrongfully discharged in retaliation for filing a workers’ compensation action has a cause of action independent from that set out in NMSA 1978, Section 52-1-28.2 (Repl.Pamp.1991). We hold that plaintiff may…”
Martinez v. Cities of Gold Casino, 215 P.3d 44 (N.M. Ct. App. 2009). “1, which prohibits unfair and bad faith claim-processing practices, and Section 52-1-28.2, which prohibits retaliation against employees seeking benefits.”
Martinez v. Pojoaque Gaming, Inc., 2011 NMCA 103 (N.M. Ct. App. 2011). “” Thus, the WCJ concluded that PGI’s actions constituted retaliation against Worker for seeking workers’ compensation benefits in violation of Section 52-1-28.2. The WCJ imposed a $2500 penalty against PGI, payable to the WCA pursuant to the remedy provisions contained in…”
Hartwell v. Sw. Cheese Co., 276 F. Supp. 3d 1188 (D.N.M. 2016). “” *1208 NMSA § 52-1-28.2 (A). SWC maintains that since Plaintiff has not alleged that her workers’ compensation claim was the sole reason she was discharged, Plaintiffs claim should be dismissed.”
Gutierrez v. Sundancer Indian Jewelry, Inc., 868 P.2d 1266 (N.M. Ct. App. 1993). “NMSA 1978, § 52-1-28.2 (Repl.Pamp.1991) (establishing a cause of action against an employer who discharges, threatens to discharge, or otherwise retaliates against an employee for seeking workers' compensation benefits).”
Cruz v. Liberty Mut. Ins., 889 P.2d 1223 (N.M. 1995). “Section 52-1-28.2 of the Act provides a remedy for retaliatory discharge in that the employer would have to rehire the employee and pay civil penalties, but that remedy does not cover the employee’s lost wages from the date of discharge to the date of rehiring and other damages…”
Lucero v. City of Albuquerque, 43 P.3d 352 (N.M. Ct. App. 2002). “NMSA 1978, § 52-1-28.2 (1990). The Administration’s regulations indicate that any person can “make a written allegation to the Director of an act or pattern of actions with potential for adverse impact upon the workers’ compensation system.”
Yeitrakis v. Schering-Plough Corp., 804 F. Supp. 238 (D.N.M. 1992). “New Mexico Workers' Compensation Act, § 52-1-28.2 NMSA 1978 (Repl.Pamp.1991). 17 .”
Martinez v. Cimarron Mun. Bd. of Educ. (N.M. Ct. App. 2024). “{5} Plaintiff attempts to craft a legal theory that will allow him to bring a claim pursuant to Section 52-1-28.2 of the WCA in the district court.”
Contreras v. Miller Bonded, Inc., 2014 NMCA 11 (N.M. Ct. App. 2013). “This claim is brought pursuant to NMSA 1978, Section 52-1-28.2(A) (1990) (providing that “[a]n employer shall not discharge, threaten to discharge 12 III.”
Martin v. N.M. Mut. Cas. (N.M. Ct. App. 2023). “Similarly, Section 52-1-28.2 provides that an employer who terminates a 2 worker in retaliation for that worker seeking benefits must rehire the worker and pay 3 a civil penalty of up to $5,000 to the workers’ compensation administration fund.”
Mejia v. Adelita's Inc. (N.M. Ct. App. 2023). “2(A) supported protecting employees from being discharged in retaliation for filing a workers’ compensation claim, New Mexico recognized a cause of action of retaliatory discharge based on a worker’s discharge for exercising their rights afforded by the WCA.”
N.M. Stat. § 52-1-28.2(A): 5 cases
Martinez v. Cities of Gold Casino, 215 P.3d 44 (N.M. Ct. App. 2009). “1, which prohibits unfair and bad faith claim-processing practices, and Section 52-1-28.2, which prohibits retaliation against employees seeking benefits.”
Hartwell v. Sw. Cheese Co., 276 F. Supp. 3d 1188 (D.N.M. 2016). “” *1208 NMSA § 52-1-28.2 (A). SWC maintains that since Plaintiff has not alleged that her workers’ compensation claim was the sole reason she was discharged, Plaintiffs claim should be dismissed.”
Contreras v. Miller Bonded, Inc., 2014 NMCA 11 (N.M. Ct. App. 2013). “This claim is brought pursuant to NMSA 1978, Section 52-1-28.2(A) (1990) (providing that “[a]n employer shall not discharge, threaten to discharge 12 III.”
Mejia v. Adelita's Inc. (N.M. Ct. App. 2023). “2(A) supported protecting employees from being discharged in retaliation for filing a workers’ compensation claim, New Mexico recognized a cause of action of retaliatory discharge based on a worker’s discharge for exercising their rights afforded by the WCA.”
Contreras v. Miller Bonded, Inc. (N.M. Ct. App. 2013).
N.M. Stat. § 52-1-28.2(B): 4 cases
Martinez v. Pojoaque Gaming, Inc., 2011 NMCA 103 (N.M. Ct. App. 2011). “” Thus, the WCJ concluded that PGI’s actions constituted retaliation against Worker for seeking workers’ compensation benefits in violation of Section 52-1-28.2. The WCJ imposed a $2500 penalty against PGI, payable to the WCA pursuant to the remedy provisions contained in…”
Martinez v. Cities of Gold Casino, 215 P.3d 44 (N.M. Ct. App. 2009). “1, which prohibits unfair and bad faith claim-processing practices, and Section 52-1-28.2, which prohibits retaliation against employees seeking benefits.”
Martin v. N.M. Mut. Cas. (N.M. Ct. App. 2023). “Similarly, Section 52-1-28.2 provides that an employer who terminates a 2 worker in retaliation for that worker seeking benefits must rehire the worker and pay 3 a civil penalty of up to $5,000 to the workers’ compensation administration fund.”
Martin v. N.M. Mut. Cas. (N.M. Ct. App. 2023).
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