New Mexico Forms Library

13-2325. Whistleblower Protection Act; affirmative defense.

To establish a defense to a claim under the Whistleblower Protection Act, ______________ (name of defendant) has the burden of proving that the action taken against _______________ (name of plaintiff) was due to:

[_______________’s (name of plaintiff) misconduct]

[or]

[______________’s (name of plaintiff) poor job performance]

[or]

[a reduction in work force]

[or]

[_______________ (insert another legitimate business purpose claimed by the employer unrelated to the conduct prohibited by the Whistleblower Protection Act)],

AND that

_______________’s (name of plaintiff) engagement in the protected activity was not a motivating factor for _______________’s (name of defendant) action against _______________ (name of plaintiff).

USE NOTES

This instruction applies in every case alleging violation of the Whistleblower Protection Act, NMSA 1978, §§ 10-16C-1 to -6 (2010), in which the employer asserts an affirmative defense under NMSA 1978, Section 10-16C-4.

[Adopted by Supreme Court Order No. 22-8300-030, effective for all cases pending or filed on or after December 31, 2022.]