New Mexico salary history ban: no state law, and a Fair Pay for Women Act with no 'other factor' defense

New Mexico has no law that bars employers from asking job candidates about their salary history, as of November 2026. The Legislature's bill lists for the 2025 and 2026 regular sessions contain no salary history bill, and we found no ordinance in Albuquerque, Las Cruces or Santa Fe. What makes pay history risky in New Mexico is the 2013 Fair Pay for Women Act, NMSA 28-23-3: it allows a man and a woman doing equal work to be paid differently only under a seniority, merit or production system. Unlike the federal Equal Pay Act, it has no "any other factor other than sex" exception, so prior salary is not on its list, and a violation can cost treble damages.

Is it illegal to ask about salary history in New Mexico?

No. Nothing in New Mexico's statutes bars the question for private employers or for public ones. The Legislature's bill lists for the 2025 regular session and the 2026 regular session, which we reviewed in November 2026, include bills on state employee salaries, the minimum wage and school pay, but none on salary history or pay ranges in job postings. A candidate may decline to answer, and no state statute protects that choice.

That matches our guide to hiring employees in New Mexico and New Mexico background check laws, which found no state limit on salary history or credit questions.

What does the Fair Pay for Women Act allow?

The Act, passed as House Bill 216 in 2013, says in section 3 (NMSA 28-23-3(A)) that "No employer shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages" at a lower rate than to employees of the opposite sex "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."

Two more provisions matter at the offer stage. Section 3(B) says "An employer shall not reduce the wage of an employee to comply with this section," so a gap is fixed by raising the lower rate. And the words "any person acting for an employer" in the definition of employer mean a recruiter or staffing firm that prices a candidate for a client is within the definition.

Why does the missing "other factor" defense matter for prior pay?

Under federal law, prior salary is usually argued as a "factor other than sex," and courts and the EEOC have narrowed that argument (see below). The Fair Pay for Women Act does not offer the argument at all. If a woman is hired at $58,000 because that matched her last job, and a man in the same establishment doing equal work is paid $66,000 because that matched his (example figures), the only justifications the statute lists are seniority, merit and production systems. "We matched each person's previous salary" is none of them.

This is a reading of the text. We have not reviewed New Mexico appellate decisions on the point for this page, and an employer facing a claim would also have the federal defenses in a federal claim. For planning, the safe course is the same either way: set starting pay from the role's range, record job-related reasons, and leave pay history out of the decision.

What can an employee recover?

The remedies are broad. Under section 6 of HB 216 (NMSA 28-23-6), an employer that violates the Act is liable for damages and equitable relief "including employment, reinstatement and promotion," calculated on:

• the employee's unpaid wages and the damages from retaliation;
• "all other actual damages"; and
• treble damages, which the court may decline or reduce if the employer shows good faith and "reasonable grounds" for believing it was not violating the Act.

Punitive damages are also available, and recovery of unpaid wages "is limited to six years prior to the date of the last violation." Under section 4 (NMSA 28-23-4), an employee may sue directly or use the Human Rights Act's complaint process, need not exhaust administrative remedies, recovers costs and reasonable attorney fees, and must file "no later than two years from the last date of the employee's employment." Section 5 bars retaliation by "an employer or any other person," including for "informing another person about employment rights."

Do New Mexico cities have salary history rules?

We found none. In November 2026 we searched the Albuquerque code on American Legal Publishing and the Las Cruces, Santa Fe, Roswell and Farmington codes on Municode for "salary history," "wage history," "compensation history" and "pay history." The only hit, in the Santa Fe charter, was a policy statement on a living wage followed by a "History" note, not a hiring rule. We did not check Rio Rancho's code for this page.

Which federal rules apply in New Mexico?

• Equal Pay Act and the Tenth Circuit. New Mexico is in the Tenth Circuit. In Riser v. QEP Energy, No. 14-4025, decided January 27, 2015, the court said the Equal Pay Act "precludes an employer from relying solely upon a prior salary to justify pay disparity." Our Utah page covers the case in more detail.
• EEOC. The Compliance Manual section on compensation discrimination, still on eeoc.gov as of November 2026, says "Prior salary cannot, by itself, justify a compensation disparity."
• Title VII. 42 U.S.C. 2000e-2(a) bars compensation discrimination by employers with 15 or more employees.
• Federal contractors. The OFCCP pay transparency rule, 41 CFR 60-1.35, no longer applies: Executive Order 14173 revoked Executive Order 11246, and the Labor Department removed part 60-1 effective October 26, 2026 (91 FR 54444). The National Labor Relations Act still protects most private-sector employees who discuss their wages.

Do neighboring states' rules reach New Mexico recruiters?

One neighbor bans the question outright, and one sits under a stricter federal court:

• Colorado. Every employer with someone working in Colorado is barred from asking about pay history or relying on it; see the Colorado salary history ban. A Farmington or Santa Fe desk filling a Durango or Pueblo job is working under it.
• Arizona. No state ban, but Arizona is in the Ninth Circuit, where Rizo v. Yovino (2020) holds that prior pay cannot justify a gap "alone or in combination with other factors"; see the Arizona page.
• Texas, Oklahoma and Utah. No state bans; Texas also reserves "hiring practices" to the state. See Texas, Oklahoma and Utah.

Remote postings raise the matching pay range question, covered in pay transparency for remote jobs.

Should a New Mexico recruiter ask about current pay?

Agency licensing and other screening rules are in New Mexico staffing agency licensing and E-Verify requirements in New Mexico.

A New Mexico script

Opening the pay topic

"This role pays $60,000 to $70,000 plus benefits (example figures). What are you looking for?" More wording is in salary expectation questions.

When the hiring manager wants to match the candidate's old salary

"New Mexico's equal pay law doesn't list prior salary as a reason for a pay difference, only seniority, merit and production. Let's place her in the range by experience and write that down."

When the candidate volunteers current pay

"Thanks. We set pay from the role, so the number I'll share is your expectation." Record the expectation only.

New Mexico summary

New Mexico checklist

1. Adopt a no-pay-history policy even though New Mexico allows the question.
2. Share the range first and ask for expectations.
3. Document every offer against seniority, merit or production criteria and the job's requirements, never prior pay.
4. Keep volunteered figures out of notes and submittals; see what not to write in interview notes.
5. Audit pay for equal work at least yearly and raise, never cut, to close gaps.
6. Check the state where a remote hire will work, starting with Colorado; the full list is in salary history ban states.