Overtime Pay Law Summaries
New Mexico, Overtime Pay Law Summaries
New Mexico's overtime pay 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 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 Subsection A of Section 50-4-22 NMSA 1978 (payment of the state minimum wage rate), “employer” includes the state or any political subdivision of the state (Sec. 50-4-21, as amended by Ch. 47 (S. 324), L. 2007, enacted March 23, 2007, and effective January 1, 2008, and amended by Ch. 2 (S. 66), L. 2008, effective January 18, 2008).
“Employee” includes any individual employed by any employer, but does not include (Sec. 50-4-21, as amended by Ch. 47 (S. 324), L. 2007, enacted March 23, 2007, and effective January 1, 2008, and amended by Ch. 2 (S. 66), L. 2008, 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 Subsection A of Section 50-4-22 NMSA 1978 (payment of the minimum wage rate), “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;
ambulance service employees;
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 must 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 (employer includes principal stockholder of a family corporation); (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.
EXCEPTIONS
See DEFINITIONS above.
Also, New Mexico's overtime pay 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).
Finally, any employer of workers engaged in the ginning of cotton for market, in any place of employment located within a county where cotton is grown in commercial quantities, and each employee who is employed for a period of not more than 14 weeks in any calendar year, is exempt from New Mexico's overtime pay law (Sec. 50-4-24, as amended by Ch. 98 (H. 782), L. 1999, effective June 18, 1999).
WHAT THE EMPLOYER MUST DO
No employee covered by the overtime pay law may be required to work more than 40 hours in any seven-day week, unless the employee is paid one and one-half times the employee's regular hourly rate of pay for all hours worked in excess of 40 hours, except as provided below (Sec. 50-4-22).
Overtime-special circumstances.- No employees other than firefighters, law enforcement officers or farm or ranch hands whose duties require them to work longer hours, or employees primarily in a stand-by position, may be required to work for any employer within New Mexico more than 16 hours in any one 24-hour day, except in emergencies (Sec. 50-4-30).
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).
Collective bargaining.- New Mexico's overtime pay 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).
NOTICE
Every employer covered by New Mexico's overtime pay 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 (Sec. 50-4-25).
ENFORCEMENT
The Labor Commissioner enforces and prosecutes violations of New Mexico's overtime pay law with the assistance of the Director of the Labor and Industrial Division (Sec. 50-4-26). Effective June 19, 2009, the director of the labor relations division of the workforce solutions department has authority to enforce and prosecute violations relating to payment of overtime. The district attorney for the district where the violation occurred must 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.- The Labor Commissioner has authority to institute court actions to prosecute violations in the name of New Mexico in the district court of the county in which the employer that has failed to comply with the overtime pay law resides, or has its principal office or place of business (Sec. 50-4-26). Effective June 19, 2009, the director of the labor relations division of the workforce solutions department has authority to institute court actions to prosecute violations in the name of the state, in the district court of the county where the employer has failed to comply 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).
Any employer that violates the overtime compensation provision is liable to the employees affected in the amount of their unpaid overtime compensation and in an additional equal amount as liquidated damages. In addition to any judgment awarded to an employee, costs of the action and reasonable attorneys' fees will be paid by the employer. In any proceedings brought under the overtime pay law, the employee is not required to pay any filing fee or other court costs (Sec. 50-4-26). Effective June 19, 2009, an employer that violates state overtime requirements is liable to affected employees in the amount of their unpaid or underpaid wages plus interest, and in an additional amount equal to twice the unpaid or underpaid 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 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 as of June 19, 2009, Any 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, and new material added (not yet codified), 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.
RECORDKEEPING
Every employer must keep accurate records of hours worked and wages paid to each employee, which must be kept for at least one year after entry (Sec. 50-4-9).
POSTING
Every employer covered by New Mexico's overtime pay 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 (Sec. 50-4-25).
PENALTIES
Any employer that violates New Mexico's overtime pay law is guilty of a misdemeanor and will be punished by a fine of not less than $25 or more than $300 or by imprisonment for not less than 10 nor more than 90 days or by both fine and imprisonment (Sec. 50-4-26).
Effective June 19, 2009, an employer that violates New Mexico's overtime requirements is guilty of a misdemeanor and, upon conviction, is to be sentenced pursuant to the provisions of Section 31-19-1. Section 31-19-1 provides that where a person is convicted of a crime constituting a misdemeanor, the judge shall sentence the person to be imprisoned in the county jail for a definite term less than one year and/or payment of a fine of not more than $1,000. Further, an employer that violates state overtime requirements is liable to affected employees in the amount of their unpaid or underpaid wages plus interest, and in 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; and Sec. 31-19-1).
Employers that violate the 16-hour limitation placed on the work hours of firefighters, law enforcement officers or farm or ranch hands are guilty of a misdemeanor (Sec. 50-4-30).
Retaliation prohibited.- Effective as of June 19, 2009, employers are prohibited from discharging, demoting, denying promotions to, or in any other way discriminating against a person in the terms or conditions of employment in retaliation for the person asserting a claim or right under state law relating to payment of minmum wages and overtime or for assisting another person to do so or for informing another person about employment rights or other rights provided by law (New law, added by Ch. 104 (H. 489), L. 2009, effective June 19, 2009. Not yet codified).
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