Minimum Wage Law Summaries
New Mexico, Minimum Wage Law Summaries
New Mexico's minimum wage law is codified in the New Mexico Statutes Annotated at Chapter 50, Article 4. The full text of the law is available at Wages-Hours ¶32-41,001 .
DEFINITIONS
“Employer” includes any individual, partnership, association, corporation, business trust, legal representative or any organized group of persons employing one or more employees at any one time, acting directly or indirectly in the interest of an employer in relation to any employee, but does not include the United States, the state or any political subdivision of the state; provided, however, that for the purposes of Sec. 50-4-22(A) (see WHAT THE EMPLOYER MUST DO below) “employer” includes the state or any political subdivision of the state (Sec. 50-4-21, as amended by Ch. 2 (S. 66), L. 2008, enacted and effective January 18, 2008).
“Employee” includes any individual employed by any employer, but does not include (Sec. 50-4-21, as amended by Ch. 2 (S. 66), L. 2008, enacted and effective January 18, 2008):
domestics working in private homes;
executive, administrative or professional employees and forepersons, superintendents and supervisors;
employees of the United States, the state or any political subdivision of the state; provided, however, that for the purposes of Sec. 50-4-22(A) (see WHAT THE EMPLOYER MUST DO below) “employee” includes an individual employed by the state or any political subdivision of the state;
individuals engaged in the activities of educational, charitable, religious or nonprofit organizations where the employer-employee relationship does not, in fact, exist or where the services rendered to the organizations are on a voluntary basis. The employer-employee relationship does not exist for individuals being served for purposes of rehabilitation by a charitable or nonprofit organization, notwithstanding the payment of a stipend based upon the value of the work performed;
salespersons or employees compensated on piecework, flat rate schedules or commission basis;
students regularly enrolled in primary or secondary schools working after school hours or on vacation;
registered apprentices and learners;
persons 18 years of age or under who are not students in primary, secondary, vocational or training schools;
persons 18 years of age or under who are not graduates of a secondary school;
G.I. bill trainees in training;
seasonal employees of an employer obtaining and holding a valid certificate issued annually by the Director of the Labor Relations Division of the Workforce Solutions Department. The certificate will state the job designations and total number of employees to be exempted;
any employee employed in agriculture: (a) if the employee is employed by an employer who did not, during any calendar quarter during the preceding calendar year, use more than 500 man-days of agricultural labor; (b) if the employee is the parent, spouse, child or other member of the employer's immediate family; (c) if the employee is employed as a hand-harvest laborer working under certain conditions; (d) if the employee, other than an employee described in item (c) just above, (i) is 16 years of age or under and is employed as a hand-harvest laborer, is paid on a piece-rate basis in an operation that has been, and is generally recognized as having been, paid on a piece-rate basis in the region of employment; (ii) is employed on the same farm as the employee's parent or person standing in the place of the parent; and (iii) is paid at the same piece-rate as employees over age 16 are paid on the same farm; or (e) if the employee is principally engaged in the range production of livestock or in milk production;
an employee engaged in the handling, drying, packing, packaging, processing, freezing or canning of any agricultural or horticultural commodity in its unmanufactured state; or
employees of charitable, religious or nonprofit organizations who reside on the premises of group homes operated by such charitable, religious or nonprofit organizations for persons who have a mental, emotional or developmental disability.
COVERAGE
See DEFINITIONS above.
Local ordinances.- Except as otherwise provided just below, cities, counties, home rule municipalities and other political subdivisions of the state shall not adopt or continue in effect any law or ordinance that would mandate a minimum wage rate higher than that set forth in the Minimum Wage Act. This subsection expires on January 1, 2010 (Sec. 50-4-22.1, added by Ch. 47 (S. 324), L. 2007, effective January 1, 2008).
A local law or ordinance, whether advisory or self-executing, in effect on January 1, 2007, that provides for a higher minimum wage rate than that set forth in the Minimum Wage Act shall continue in full force and effect until repealed (Sec. 50-4-22.1, added by Ch. 47 (S. 324), L. 2007, effective January 1, 2008).
EXCEPTIONS
See DEFINITIONS above.
Also, New Mexico's minimum wage law does not apply to domestic servants and employees engaged in interstate commerce whose hours of labor are governed by federal law (Sec. 50-5-4).
WHAT THE EMPLOYER MUST DO
An employer must pay an employee the minimum wage rate of $7.50 an hour (Sec. 50-4-22(A), as amended by S. 324, L. 2007, enacted March 23, 2007).
Santa Fe living wage.- The City of Santa Fe's “living wage” is $9.85 per hour beginning January 1, 2009. Each year thereafter, the living wage will be adjusted upward by an amount corresponding to the previous year's increase, if any, in the consumer price index for the western region for urban wage earners and clerical workers. For workers who customarily receive more than $100 per month in tips or commissions, any tips or commissions received and retained by a worker shall be counted as wages and credited towards satisfaction of the minimum wage provided that, for tipped workers, all tips received by such workers are retained by the workers, except that the pooling of tips among workers shall be permitted. The value of health care benefits and child care shall be considered as an element of wages. [Note that previously (November 2008) the City of Santa Fe had announced a living wage rate adjustment to that of $9.92 per hour, based on the Consumer Price Index 12-month average from October to October as the figure for the previous year; However, after the January to January numbers were released, the City adjusted the Living Wage again, to $9.85, to best reflect the intent of the City's Living Wage law.] (Living Wage Ordinance Notice, Ordinance Number §28-1, 28-1.12 SFCC 1987; City of Santa Fe News Flash, January 16, 2009).
Nonprofit organizations whose primary source of funds is from Medicaid waivers are exempt.
The following must pay the living wage: (1) The city of Santa Fe to all full-time permanent workers employed by the city. However, the provisions of this section are expressly limited by and subject to future union negotiations in compliance with the Fair Labor Standards Act and subsequent appropriations by the governing body in compliance with the Bateman Act; (2) Contractors for the city that have a contract requiring the performance of a service including construction services but excluding purchases of goods, shall pay the minimum wage to their workers and subcontractors performing work under the contract if the total contract amount with the city is, or by way of amendment becomes, equal to or greater than $30,000; and (3) Businesses receiving assistance relating to economic development in the form of grants, subsidies, loan guarantees or industrial revenue bonds in excess of $25,000 to those employed by such entity for the duration of the city grant or subsidy; and (4) Businesses required to have a business license or business registration from the city and nonprofit organizations shall pay the minimum wage to their workers for all hours worked within the city that month. For purposes of this paragraph, worker shall not include any person who is related by blood or by marriage to any person who may have or possess any ownership interest in the business that employes them. For purposes of identifying persons entitled to be paid the minimum wage, all individuals employed by or providing work to the business for compensation, whether on a part-time, full-time or temporary basis, during a given month shall be counted as a worker. This definition shall include contingent or contracted workers, and persons made available to work through the services of a temporary service, staffing or employment agency or similar entity. However, interns working for a business for academic credit in connection with a course of study at an accredited school, college or university or persons working for an accredited school, college or university while also attending that school, college or university, or persons working for a business in connection with a court-ordered community service program such as teen court or workers who are in an apprenticeship program in a 501C(3) organization shall not counted as a worker for such purposes (Ordinance No. 2007-43, effective January 1, 2008).
Albuquerque living wage.- Employers shall pay employees no less than $7.50 per hour, effective January 1, 2009, for each hour worked within the municipal limits of the city. Tips or commissions received and retained by an employee shall be counted as wages and credited towards satisfaction of the minimum wage.
For employers who provide health care and/or child care benefits to an employee during any pay period for which the employer pays an amount for those health care benefits equal to or in excess of an annualized cost of $2500.00, the minimum wage for that employee shall be an hourly rate of $6.50, in addition to the health care benefits and/or child care benefits.
For purposes of the living wage, “employer” means any person, partnership, association, corporation, business trust, legal representative, or any other entity, or group or persons or entities, including corporate officers or executives, who is required to have a business license or business registration from the city and who directly or indirectly or through an agent or any other person including, but not limited to, through a subsidiary or through the services of a temporary services agency, a staffing agency, a building services contractor, or any similar entity, employs or exercises control over the wages, hours or working conditions of any employee. “Employer” includes the City of Albuquerque.
For purposes of the living wage, “employee” means any person who performs work for an employer for monetary compensation for at least two hours in a given week within the municipal limits of the city. “Employee” includes persons who perform work for an employer on a full-time, part-time, seasonal, or temporary basis, but does not include any person who is excluded from the definition of “employee” under the New Mexico Minimum Wage Act (see DEFINITIONS above), except that persons employed by the city are employees. “Employee” shall not include interns working for an employer for academic credit in connection with a course of study at an accredited school, college or university or employees working for an accredited school, college or university pursuant to a work-study program while attending that school, college or university. “Employee” shall not include any person who has received a certificate from the state labor commissioner pursuant to Sec. 50-4-23 (see Subminimum wages below) or 50-4-21(C)(12) (see DEFINITIONS above) (Council Bill No. O-06-20, passed April 20, 2006, signed by mayor April 27, 2006).
Bernalillo County minimum wage.- With limited exceptions, employers shall pay all employees no less than the minimum wage of $7.50 for each hour worked within the unincorporated limits of the county, effective January 1, 2009.
For employers who provide healthcare and/or childcare benefits to an employee during any pay period for which the employer pays an amount for those healthcare benefits equal to or in excess of an annualized cost of $2500.00, the minimum wage for that employee shall be an hourly rate of $6.50, in addition to the healthcare benefits and/or childcare benefits.
Tips or commissions received and retained by an employee shall be counted as wages and credited towards satisfaction of the minimum wage.
Board and lodging.- An employer furnishing food, utilities, supplies or housing to an employee who is engaged in agriculture may deduct the reasonable value of the furnished items from any wages due (Sec. 50-4-22(B)).
Tipped employee credit.- All employees covered by the minimum wage provisions who customarily and regularly receive more than $30 a month in tips shall be paid a minimum hourly wage of $2.13. The employer may consider tips as part of wages, but the tips combined with the employer's cash wage shall not equal less than the state minimum wage rate. All tips received by the employees must be retained by them; however, tip pooling is permissible (Sec. 50-4-22(C), as amended by S. 324, L. 2007, effective January 1, 2008).
Wages-special circumstances.- For an employee who is paid a fixed salary for fluctuating hours and who is employed by an employer a majority of whose business in New Mexico consists of providing investigative services to the federal government, the hourly rate may be calculated in accordance with the federal Fair Labor Standards Act; provided that in no case may the hourly rate be less than the federal minimum wage (Sec. 50-4-22(D)).
Subminimum wages.- The Labor Commissioner, to the extent necessary in order to prevent curtailment of opportunities for employment, will, by regulation, provide for the employment under special certificates of certain individuals, including agricultural workers, whose earning or productive capacity is impaired by physical or mental deficiency or injury. These employees may be employed at subminimum wages, but not less than $2.125, 50 percent of the minimum wage (Sec. 50-4-23).
The commissioner, pursuant to regulations and upon certification of any state agency administering or supervising vocational rehabilitation services, may issue special certificates that allow the worker to work at subminimum wages related to productivity; for the employment of “handicapped” workers engaged in work that is incidental to training or evaluation programs; and “multihandicapped” individuals and other individuals whose earning capacity is so severely impaired that they are unable to engage in competitive employment (Sec. 50-4-23).
The commissioner may, by regulation or order, provide for the employment of “handicapped ” individuals in work activities centers under special certificates at subminimum wages-even less than 50 percent of the minimum wage -that constitutes equitable compensation. “Work activities centers” means centers planned and designed exclusively to provide therapeutic activities for handicapped persons whose physical or mental impairment is so severe as to make their productive capacity inconsequential (Sec. 50-4-23).
The state agency administering or supervising the administration of vocational rehabilitation may issue a temporary certificate for a period not to exceed 90 days and may request an extension of the certification by the commissioner when it is determined that the severity of an individual's disability or circumstances warrants an extension (Sec. 50-4-23).
Collective bargaining.- New Mexico's minimum wage law does not interfere with, impede or in any way diminish the right of employees to bargain collectively with their employers through representatives of their own choosing in order to establish wages or other conditions of work in excess of the applicable minimum (Sec. 50-4-28).
Independent contractor standards in construction industry.- For purposes of the employer and employee relationship within those construction industries subject to the Construction Industries Licensing Act, a contractor who is an employer shall consider a person providing labor or services to the contractor for compensation to be an employee of the contractor and not an independent contractor unless the following standards indicative of an independent contractor are met (Sec. 60-13-3.1, added by Ch. 94 (S. 657), L. 2005, effective June 17, 2005):
the person providing labor or services is free from direction and control over the means and manner or providing the labor or services, subject only to the right of the person for whom the labor or services are provided to specify the desired results;
the person providing labor or services is responsible for obtaining business registration or licenses required by state law or local ordinance for the person to provide the labor or services;
the person providing labor or services furnishes the tools or equipment necessary to provide the labor or services;
the person providing labor or services has the authority to hire and fire employees to perform the labor or services;
payment for labor or services is made upon completion of the performance of specific portions of a project or is made on the basis of a periodic retainer; and
the person providing labor or services represents to the public that the labor or services are to be provided by an independently established business.
A contractor who intentionally and willfully reports to a state agency or other client that an employee is an independent contractor or who, for the purposes of a program administered by a state agency, intentionally and willfully treats or otherwise lists an employee as an independent contractor when the employee's status does not meet the standards indicative of an independent contractor as identified just above is guilty of a misdemeanor and shall be punished by a fine of not more than $5,000 or by imprisonment for a definite term not to exceed six months, or both (Sec. 60-13-3.1, added by Ch. 94 (S. 657), L. 2005, effective June 17, 2005).
Retaliation.- It is a violation of the Minimum Wage Act for an employer or any other person to discharge, demote, deny promotion to or in any other way discriminate against a person in the terms or conditions of employment in retaliation for the person asserting a claim or right pursuant to the Minimum Wage Act or assisting another person to do so or for informing another person about employment rights or other rights provided by law (Sec. 3, H. 489, L. 2009, effective June 19, 2009).
NOTICE
Every employer covered by New Mexico's minimum wage law must keep a summary of the law, furnished by the Labor Commissioner without charge, posted in a conspicuous place on or about the premises where any person covered by the law is employed. The summary must clearly and conspicuously set forth the current minimum wage (Sec. 50-4-25).
ENFORCEMENT
The Director of the Labor Relations Division of the Workforce Solutions Department enforces and prosecutes violations of New Mexico's minimum wage law. The district attorney for the district wherein any violation occurs shall aid and assist the director in the prosecution (Sec. 50-4-26, as amended by Ch. 104 (H. 489), L. 2009, effective June 19, 2009).
Court actions.- Effective June 19, 2009, the Director of the Labor Relations Division of the Department of Workforce Solutions has authority to institute a court action to prosecute violations of the minimum wage law in the name of the state of New Mexico in the district court of the county in which the employer who has failed to comply with the minimum wage law resides or has a principal office or place of business (Sec. 50-4-26, as amended by Ch. 104 (H. 489), L. 2009, effective June 19, 2009).
Effective June 19, 2009, any employer that violates state minimum wage and overtime requirements will be liable to affected employees in the amount of their unpaid or underpaid minimum wages, plus interest, and in an additional amount equal to twice the unpaid or underpaid minimum wages. In addition to any judgment awarded to an employee, costs of the action and reasonable attorney fees will be paid by the employer. In any proceedings brought under the minimum wage law, the employee is not required to pay any filing fee or other court costs. In addition, a court may also order appropriate injunctive relief, including requiring the employer to post in the place of business a notice describing violations by the employer or a copy of a cease and desist order (Sec. 50-4-26, as amended by Ch. 104 (H. 489), L. 2009, effective June 19, 2009).
Wage claims, Statute of limitations.- Effective June 19, 2009, a civil action to enforce any provision of law under Chapter 50, Article 4, must be commenced within three years after a violation last occurs. The three-year period shall be tolled during investigation of an employer by the labor relations division of the department of workforce solutions, but such investigation shall not be deemed a prerequisite to a person bringing a civil action, nor shall it operate to bar a civil action. A civil action to enforce the law may encompass all violations that occurred as part of a continuing course of conduct, regardless of the date of occurrence (Sec. 37-1-5, as amended by Ch. 104 (H. 489), L. 2009, effective June 19, 2009; Sec. 2, Ch. 104 (H. 489), as added , by Ch. 104 (H. 489), L. 2009, effective June 19, 2009).
WHO TO CONTACT
Contact the Department of Workforce Solutions, 401 Broadway NE, Albuquerque, NM 87102, or P.O. Box 1928, Albuquerque NM 87103.
POSTING
Every employer covered by New Mexico's minimum wage law must keep a summary of the law, furnished by the Labor Commissioner without charge, posted in a conspicuous place on or about the premises where any person covered by the law is employed. The summary must clearly and conspicuously set forth the current minimum wage (Sec. 50-4-25).
See also ENFORCEMENT above.
PENALTIES
Effective June 19, 2009, an employer who violates any provision of New Mexico's minimum wage law is guilty of a misdemeanor and, upon conviction, shall be sentenced pursuant to the provisions of Section 31-19-1. Section 31-19-1 provides that, for a misdemeanor offense, the judge shall sentence the person to imprisonment in the county jail for a definite term less than one year and/or to the payment of a fine of not more than $1,000. In addition to these penalties, an employer who violates state minimum wage and overtime requirements will be liable to affected employees in the amount of their unpaid or underpaid minimum wages plus interest, and an additional amount equal to twice the unpaid or underpaid wages. Further, a court may order injunctive relief, including requiring an employer to post in the place of business a notice describing the violations committed by the employer or a copy of a cease and desist order (Sec. 50-4-26, as amended by Ch. 104 (H. 489), L. 2009, effective June 19, 2009; Sec. 31-19-1).
See also WHAT THE EMPLOYER MUST DO above.