Express or Implied Contract of Employment In New Mexico
In New Mexico, an employee is presumed to be an at-will employee in the absence of an express or implied contract. Hartbarger v. Frank Paxton Co., 115 N.M. 665, 672, 857 P.2d 776, 783 (1993); Kiedrowski v. Citizens Bank, 119 N.M. 572, 575, 893 P.2d 468, 471 (Ct. App. 1995).
The existence of an implied contract that restricts the unfettered discharge power rebuts the presumption. Hartbarger, 115 N.M. at 672, 857 P.2d at 783; Kiedrowski, 119 N.M. at 575, 893 P.2d at 471. "An employer creates expectations by establishing policies or making promises.
An implied contract is created only where an employer creates a reasonable expectation. the reasonableness of expectations is measured by just how definite, specific, or explicit has been the representation or conduct relied upon." Hartbarger, 115 N.M. at 672, 857 P.2d at 783.
A written policy may not create any reasonable expectation giving rise to an implied contract when the policy contains an "express reservation of the right to terminate an employee for any reason." Garrity, 1996-NMSC-032, P 12.
Circumstances that create an objectively reasonable expectation that employees will not be terminated except through a fair procedure can give rise to such an implied contract. Kiedrowski, 119 N.M. at 575, 893 P.2d at 471.
In looking at the totality of circumstances surrounding a discharge, an employee handbook containing disciplinary or termination procedures may be considered when determining the question of objectively reasonable expectations. Id. at 575-76, 893 P.2d at 471-72.
This is true although the handbook contains a termination-at-will type of disclaimer, "where the employer's conduct reasonably leads employees to believe that they will not be terminated without just cause and a fair procedure." Id. at 575, 893 P.2d at 471.
What constitutes those objectively reasonable expectations is ordinarily a jury question. Id.