Separation Agreement and General Release (New Mexico)

SEPARATION AGREEMENT AND GENERAL RELEASE

State of New Mexico

PRIVILEGED AND CONFIDENTIAL

This Separation Agreement and General Release ("Agreement") is entered into by and between:

EMPLOYER: [________________________________] ("Company"), a [________________________________] organized under the laws of [________________________________], with its principal place of business at [________________________________]

EMPLOYEE: [________________________________] ("Employee"), an individual residing at [________________________________], New Mexico [____]

(Company and Employee are each a "Party" and collectively the "Parties.")

Date of Agreement: [__/__/____]

RECITALS

WHEREAS, Employee has been employed by Company in the position of [________________________________] since [__/__/____], working primarily in the State of New Mexico;

WHEREAS, the Parties have mutually agreed that Employee's employment shall end effective [__/__/____] (the "Separation Date");

WHEREAS, the Parties desire to resolve all matters relating to Employee's employment and its termination;

WHEREAS, Company desires to provide separation benefits in exchange for Employee's agreement to the terms of this Agreement;

NOW, THEREFORE, in consideration of the mutual promises set forth herein, the Parties agree as follows:

ARTICLE 1: SEPARATION OF EMPLOYMENT

1.1 Separation Date. Employment terminates effective as of the Separation Date.

1.2 Last Day of Work. [__/__/____].

1.3 Final Wages -- New Mexico Requirements.

(a) NM Final Pay Timing (NMSA § 50-4-4 and § 50-4-5).

• If Employee is discharged: Unpaid wages of a fixed and definite amount (not based on task, piece, commission, or other method of calculation) become due on demand and must be paid within five (5) days of the discharge. If wages are based on task, piece, commission, or other calculation, payment must be made within ten (10) days of discharge.
• If Employee voluntarily resigns: Wages are due on the next regular payday.

(b) Final wages include all earned but unpaid wages, overtime, and compensation. Final wages shall be paid regardless of whether Employee executes this Agreement.

(c) Vacation/PTO Payout. New Mexico does not require payout of accrued vacation/PTO by statute. Payout is governed by Company policy or contract. If Company policy provides for payout: $[________________________________].

(d) NM Healthy Workplaces Act (NMSA § 50-17-1 et seq.). Effective July 1, 2022, New Mexico requires employers to provide paid sick leave (one hour per 30 hours worked, up to 64 hours per year). Payout of accrued sick leave at separation is not required.

1.4 Expense Reimbursement. Within [____] days of the Separation Date.

ARTICLE 2: SEVERANCE CONSIDERATION

2.1 Severance Payment.

☐ Lump Sum: $[________________________________], less withholdings, within [____] days following the Effective Date.

☐ Installments: $[________________________________], in [____] installments beginning on the first payroll date following the Effective Date.

2.2 Benefits Continuation. ☐ COBRA subsidy for [____] months. ☐ NM state continuation coverage may apply for small employers. ☐ Lump sum: $[________________________________].

2.3 Outplacement. [________________________________]

2.4 Other Benefits. [________________________________]

2.5 Tax Treatment. Subject to applicable withholdings.

ARTICLE 3: EQUITY, BONUS, AND OTHER COMPENSATION

3.1 Equity Awards. [________________________________]

3.2 Bonus. [________________________________]

3.3 Section 409A. All payments comply with or are exempt from Section 409A.

ARTICLE 4: GENERAL RELEASE OF CLAIMS

4.1 Employee Release. Employee hereby voluntarily, knowingly, and irrevocably releases and forever discharges the Released Parties from all claims, including but not limited to:

(a) Federal Statutes:

• Title VII, ADEA (subject to Article 6), ADA, FMLA, Pregnant Workers Fairness Act (42 U.S.C. § 2000gg et seq.), Equal Pay Act, GINA, USERRA, ERISA (excluding vested benefits), WARN Act, Section 1981

(b) New Mexico State Statutes:

• New Mexico Human Rights Act (NMSA § 28-1-1 et seq.) -- prohibiting discrimination based on race, age, religion, color, national origin, ancestry, sex (including pregnancy), sexual orientation, gender identity, physical or mental disability, serious medical condition, spousal affiliation, and retaliation
• NM Whistleblower Protection Act (NMSA § 10-16C-1 et seq.)
• NM Wage Payment Act (NMSA § 50-4-1 et seq.)
• NM Minimum Wage Act (NMSA § 50-4-19 et seq.)
• NM Healthy Workplaces Act (NMSA § 50-17-1 et seq.)
• NM Workers' Compensation Act (to the extent waivable)

(c) Common Law Claims: Breach of contract, wrongful discharge in violation of public policy (as recognized in NM -- see Vigil v. Arzola and its progeny), tortious interference, defamation, infliction of emotional distress, invasion of privacy, prima facie tort, fraud, and all other NM common law claims.

4.2 Carve-Outs. Standard carve-outs: enforcement of this Agreement; post-signing claims; unemployment; workers' comp; vested ERISA benefits; indemnification; agency filings (EEOC, NLRB, SEC, OSHA, NM Human Rights Bureau); NLRA Section 7; non-waivable rights; Speak Out Act.

4.3 Unknown Claims. Release covers known and unknown claims.

4.4 Company Release. Standard release with exceptions.

ARTICLE 5: DEFEND TRADE SECRETS ACT -- WHISTLEBLOWER IMMUNITY NOTICE

Pursuant to 18 U.S.C. § 1833(b):

"An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order."

ARTICLE 6: OWBPA / ADEA COMPLIANCE (EMPLOYEES AGE 40 AND OLDER)

This Article applies if Employee is age 40 or older at the time of signing.

6.1 Knowing and Voluntary Waiver. Employee acknowledges this Agreement constitutes a knowing and voluntary waiver of ADEA claims per the OWBPA, 29 U.S.C. § 626(f).

6.2 Consideration Period.

☐ Individual Separation (21 days): Employee has at least twenty-one (21) calendar days to consider this Agreement.

☐ Group/Program Exit (45 days): Employee has at least forty-five (45) calendar days to consider this Agreement. Decisional unit disclosure attached as Exhibit A.

6.3 Revocation Period. Employee may revoke within seven (7) calendar days after signing by delivering written notice to [________________________________] at [________________________________]. Effective Date is the eighth (8th) day after signing without revocation.

6.4 Advice of Counsel. Employee is advised in writing to consult with an attorney before signing.

6.5 No Waiver of Future Claims. This Agreement does not waive claims arising after signing.

6.6 Additional Consideration. The consideration in Article 2 exceeds anything Employee is already entitled to receive.

ARTICLE 7: CONFIDENTIALITY, NON-DISPARAGEMENT, AND PROTECTED DISCLOSURES

7.1 Confidentiality of Agreement Terms. Employee agrees to keep the terms and conditions of this Agreement confidential, except as disclosed to Employee's spouse or domestic partner, attorney, tax advisor, or financial advisor (who shall be advised of this obligation), or as required by law or legal process.

7.2 Non-Disparagement (McLaren Macomb-Compliant).

(a) Employee agrees not to make public statements that are materially disparaging of Company, its products, services, officers, directors, or employees.

(b) Company agrees to instruct its senior officers and directors not to make materially disparaging public statements about Employee.

(c) NLRA Section 7 Carve-Out (McLaren Macomb, 372 NLRB No. 58 (2023)). Nothing in this Section restricts Employee's NLRA Section 7 rights, including protected concerted activity and communications about terms and conditions of employment.

7.3 Protected Disclosures. Nothing in this Agreement prohibits or restricts Employee from:

(a) Filing a charge with the EEOC, NLRB, SEC, OSHA, New Mexico Human Rights Bureau, or any other agency;

(b) Communicating with or providing information to any governmental agency or legislative body;

(c) Testifying truthfully in any legal proceeding;

(d) Engaging in NLRA Section 7 protected concerted activity;

(e) Making disclosures protected by the Speak Out Act (Pub. L. 117-224);

(f) Making disclosures protected by the NM Whistleblower Protection Act (NMSA § 10-16C-1 et seq.).

7.4 Confidential Business Information. Employee's obligations regarding trade secrets and confidential business information survive termination per existing agreements and the NM Uniform Trade Secrets Act (NMSA § 57-3A-1 et seq.).

ARTICLE 8: RESTRICTIVE COVENANTS

8.1 Existing NDA, invention assignment, and confidentiality agreements survive.

8.2 Non-Competition (NM Law).

New Mexico enforces non-compete agreements under a common law reasonableness standard. NM courts evaluate whether the restriction is (1) supported by a protectable interest, (2) reasonable in time and scope, and (3) not unduly burdensome on the employee or the public. New Mexico courts have shown willingness to reform overbroad provisions.

☐ No Non-Compete.
☐ Existing Non-Compete. Duration: [____] months. Geographic scope: [________________________________]. Activity: [________________________________].

8.3 Non-Solicitation. [________________________________]

8.4 No-Rehire. ☐ Applicable. ☐ Not applicable.

ARTICLE 9: RETURN OF COMPANY PROPERTY

9.1 Within [____] days of the Separation Date, Employee shall return all Company property, including but not limited to:

☐ Laptop computers, tablets, mobile phones, and other electronic devices
☐ Access cards, keys, security badges, and parking passes
☐ Credit cards and corporate purchasing cards
☐ All documents, files, records, and data (hard copy and electronic)
☐ Proprietary and confidential information in any form
☐ All copies of the foregoing

9.2 Employee represents and warrants that Employee has not retained and will not retain any copies of Company documents, data, or confidential information on any personal device, cloud account, external storage device, or email account.

9.3 Employee shall cooperate with Company to ensure the orderly transition of responsibilities and shall be available for reasonable questions for a period of [____] days following the Separation Date.

ARTICLE 10: DISPUTE RESOLUTION

10.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New Mexico.

10.2 Forum Selection. Any dispute arising under this Agreement shall be brought exclusively in the state or federal courts located in [________________________________], New Mexico.

10.3 Arbitration (Optional).

☐ The Parties agree that any dispute arising under this Agreement shall be resolved by binding arbitration administered by [________________________________] in accordance with its employment arbitration rules.

☐ Exclusions from Arbitration: Claims covered by the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (9 U.S.C. § 401 et seq.), NLRB charges, workers' compensation claims, and unemployment insurance claims are excluded.

☐ Not applicable.

10.4 Jury Waiver. ☐ TO THE EXTENT PERMITTED BY NEW MEXICO LAW, EACH PARTY HEREBY WAIVES THE RIGHT TO A TRIAL BY JURY. ☐ Not applicable.

ARTICLE 11: GENERAL PROVISIONS

11.1 Entire Agreement. This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior agreements, negotiations, representations, and proposals.

11.2 Amendments. This Agreement may not be modified except by a written instrument signed by both Parties.

11.3 Severability. If any provision is held invalid, the remaining provisions continue in full force and effect.

11.4 Waiver. Failure to enforce any provision does not constitute a waiver of future enforcement rights.

11.5 Counterparts. This Agreement may be executed in counterparts. Electronic signatures are valid and binding.

11.6 Successors and Assigns. This Agreement binds and benefits the Parties and their heirs, successors, and assigns.

11.7 No Admission. Nothing herein is an admission of liability by either Party.

11.8 Section 409A. All payments are intended to comply with or be exempt from Section 409A of the Internal Revenue Code.

ARTICLE 12: NM-SPECIFIC COMPLIANCE CHECKLIST

☐ Final wages paid within 5 days of discharge (fixed wages) or 10 days (commission/task-based) (NMSA § 50-4-4)
☐ Earned wages NOT conditioned on execution of this Agreement
☐ PTO payout per employer policy
☐ Healthy Workplaces Act sick leave: payout not required at separation
☐ NM Human Rights Act claims enumerated (NMSA § 28-1-1 et seq.) -- includes serious medical condition and spousal affiliation
☐ NM Human Rights Bureau filing rights preserved
☐ NM Whistleblower Protection Act rights preserved
☐ Non-compete (if any) meets NM reasonableness standard
☐ OWBPA consideration and revocation periods provided
☐ Employee advised to consult an attorney
☐ DTSA notice included
☐ McLaren Macomb NLRA Section 7 carve-out included
☐ Speak Out Act protections preserved

ARTICLE 13: SIGNATURES

PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A GENERAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.

EMPLOYER: Signature: _____________________________ Date: [__/__/____]

Name: [________________________________] Title: [________________________________]

EMPLOYEE: Signature: _____________________________ Date: [__/__/____]

Name: [________________________________]

EXHIBITS: ☐ Exhibit A -- OWBPA Disclosure ☐ Exhibit B -- Payment Schedule ☐ Exhibit C -- Non-Compete ☐ Exhibit D -- Reference Letter

Sources and References

• NM Human Rights Act: NMSA § 28-1-1 et seq.
• NM Final Pay: NMSA § 50-4-4
• NM Healthy Workplaces Act: NMSA § 50-17-1 et seq.
• OWBPA: 29 U.S.C. § 626(f)
• McLaren Macomb: 372 NLRB No. 58 (2023)
• DTSA: 18 U.S.C. § 1833(b)

This template is provided for informational purposes only. Consult a qualified NM attorney before use.

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