Wage Payment Law Summaries
New Mexico, Wage Payment Law Summaries
New Mexico's wage payment law is codified in the New Mexico Statutes Annotated at Chapter 50, Article 4. The full text of this law is available beginning at Wages-Hours ¶32-46,001 .
DEFINITIONS
“Employer” means every person, firm, partnership, association, corporation, receiver or other officer of the court of New Mexico, and any agent or officer of any of the above-mentioned classes, employing any person in New Mexico, except employers of domestic labor in private homes and employers of livestock and agricultural labor (Sec. 50-4-1).
“Wages” shall mean all amounts at which the labor or service rendered is recompensed, whether the amount is fixed or ascertained on a time, task, piece, commission basis or other method of calculating the amount (Sec. 50-4-1).
COVERAGE
New Mexico's wage payment law covers every person, firm, partnership, association, corporation, receiver or other officer of the court of New Mexico, and any agent or officer of any of the above-mentioned classes, employing any person in New Mexico (Sec. 50-4-1).
EXCEPTIONS
New Mexico's wage payment law does not cover employers of domestic labor in private homes and employers of livestock and agricultural labor (Sec. 50-4-1).
Joint ventures.- New Mexico's wage payment law does not apply to cases where an agreement is entered into between the employer and the employee at the time of hiring, providing that the employee, as part of his or her wages or compensation, will have an interest in the success of the particular work or enterprise in connection with which the employee is hired. In all cases, the employer is subject to the law only to the extent of that portion of the wages or compensation to be paid in cash, and as to the balance the employer and employee will stand as joint adventurers (Sec. 50-4-3).
WHAT THE EMPLOYER MUST DO
Form of payment.- Except as provided by rules of the Department of Finance and Administration for payment of salaries and wages to state employees, other than employees of institutions of higher education, issued pursuant to Sec. 10-7-2, an employer must pay wages in full, less lawful deductions and less payroll deductions authorized by the employer and employee (Sec. 50-4-2, as amended by Ch. 93 (S. 639), L. 2005).
Wages must be paid in lawful money of the United States or in checks, payroll vouchers or drafts on banks, convertible into cash on demand at full face value (Sec. 50-4-2, as amended by Ch. 93 (S. 639), L. 2005).
Frequency of payment.- An employer in New Mexico must designate regular paydays, not more than 16 days apart, as days fixed for the payment of wages to all employees paid in New Mexico. The employer must pay for services rendered from the first to the fifteenth days, inclusive, of any calendar month by the twenty-fifth day of the month during which services are rendered, and for all services rendered from the sixteenth to the last day of the month, inclusive, of any calendar month by the tenth day of the succeeding month. Where computation of earnings and of amounts due, preparation of payrolls and issuance of paychecks are at a central location outside New Mexico, the employer must pay for services rendered from the first to the fifteenth days, inclusive, of any calendar month by the last of the month during which services are rendered, and for all services rendered from the sixteenth to the last day of the month, inclusive, of any calendar month by the fifteenth day of the succeeding month (Sec. 50-4-2, as amended by Ch. 93 (S. 639), L. 2005).
Wages or compensation may be paid at more frequent intervals than those set forth above. Where the labor or service to be rendered to an employer is recompensed on a task, piece or commission basis or other method of calculating the amount of wages to be paid, other than a definite and fixed amount in cash, the employer and the employee may agree in writing at the time of hiring that the wages shall be paid on a monthly basis, on or before the tenth day of the succeeding calendar month (Sec. 50-4-2, as amended by Ch. 93 (S. 639), L. 2005).
Professional, administrative or executive employees.- An employer may pay professional, administrative or executive employees or employees employed in the capacity of outside salespersons one time per month, excluding those employees whose salaries are subject to provisions of collective bargaining agreements (Sec. 50-4-2, as amended by Ch. 93 (S. 639), L. 2005).
Payment upon discharge.- Whenever an employer discharges an employee, the unpaid wages or compensation of the employee, if a fixed and definite amount, and not based on a task, piece, commission basis or other method of calculation, will, upon demand, become due immediately, and the employer must pay wages to the employee within five days of discharge. In all other cases of discharged employees, the settlement and payment of wages or compensation must be made within 10 days of discharge (Sec. 50-4-4).
Vacation pay.- Court interpretations include accrued vacation pay in the same category as wages that are of a fixed and definite and not variable type of compensation. The court did not define vacation pay as “wages” but rather, where accrued vacation was assumed by the parties to be payable, the court determined that accrued vacation was compensation of a fixed and definite amount (Sec. 50-4-4, as interpreted by the case of Wolf v. Sam's Town Furniture, NMCtApp 1995, 120 N.M. 603).
Payment when employee quits.- Whenever an employee (not having a written contract for a definite period) quits or resigns, the wages or compensation become due and are payable at the next succeeding payday. Immediate payment at the time of quitting may also be made (Sec. 50-4-5).
Dispute over wages.- In case of a dispute over wages, the employer must give written notice to the employee of the amount of wages that it concedes to be due, and must pay the amount, without condition, within the times fixed by New Mexico's wage payment law. The acceptance by the employee of any payment so made does not constitute a release as to the balance of his or her claim (Sec. 50-4-7).
Direct deposit.- Wages may be paid, with the voluntary authorization of the employer, employee and financial institution, by deposit to the account of the employee in any bank, savings and loan association, credit union or other financial institution authorized by the United States or one of the several states to receive deposits in the United States, without any reduction or deduction, except as may be specifically stated in the written contract of hiring entered into at the time of hiring (Sec. 50-4-2, as amended by Ch. 93 (S. 639), L. 2005).
State employees.- The Department of Finance and Administration may require the automatic direct deposit of a state employee's salary or wages into the employee's account, or into an account established by the department on behalf of the employee, in a financial institution authorized by the U.S. or one of the several states to receive deposits in the U.S. (Sec. 10-7-2, as amended by Ch. 93 (S. 639), L. 2005).
Payment of strikers.- In the event of the suspension of work as the result of an industrial dispute, the wages and compensation earned and unpaid at the time of suspension become due and payable at the next payday, including, without abatement or reduction, other than deductions as may be required by law, or as may be specified in the contract of hiring, all amounts due to all persons whose work has been suspended as a result of the industrial dispute, together with any deposit or other guaranty held by the employer for the faithful performance of the duties of the employee (Sec. 50-4-6).
Wage statements.- An employer must provide its employees with a written receipt that identifies the employer and sets forth the employee's gross pay, the number of hours worked by the employee, the total wages and benefits earned by the employee and an itemized listing of all deductions withheld from the employee's gross pay (Sec. 50-4-2, as amended by Ch. 93 (S. 639), L. 2005).
Day Laborer Act.- A day labor service agency shall compensate day laborers for work performed by providing or making available commonly accepted payment instruments that are payable in cash, on demand, at a financial institution. At the time of payment of wages, a day labor service agency shall provide each day laborer with an itemized statement showing in detail each deduction made from wages. In no event shall deductions made by a day labor service agency, other than those required by federal or state law, reduce a day laborer's wages below federal minimum wage for the hours worked. A day labor service agency may collect a reasonable placement fee from a third-party employer (Secs. 50-15-4).
Check cashing; notice of fees.- A check cashing service that is a day labor service agency or is operating within the office of a day labor service agency shall not charge a day laborer an amount in excess of $2.00 for cashing a check or payment instrument that is issued by the agency. No fees may be charged for cashing a check or payment instrument unless the day laborer is given the option of being paid with a check or payment instrument that is payable without a fee at a local financial institution and voluntarily elects to cash the check or payment instrument at the day labor service agency or at a check cashing service operating within the office of the day labor service agency. A day labor service agency or a check cashing service that is a day labor service agency or is operating within the office of a day labor service agency shall post notices in the area where cashing of checks or payment instruments occurs. The notices shall be clearly visible and easily readable and shall state the fee for cashing a check or payment instrument. Notices shall be posted in English, Spanish and any other written language where a high percentage of the workers speak that language. In areas where the day labor service agency employs Navajo workers and the check cashing service cashes checks of Navajo workers, notice shall be posted in Navajo (Secs. 50-15-5).
Payment for all work required; records; enforcement.- A day labor service agency shall pay a day laborer for all hours worked or otherwise due and owed to the day laborer. Failure to pay for each day and all hours worked is a violation of the Day Laborer Act. A person who fails to pay a day laborer for work performed or time due is liable for full payment of the wages not paid and civil damages equal to twice the value of the unpaid wages, court costs and attorney fees and costs. A day labor service agency shall maintain true and accurate records of the day laborers employed and of the hours worked and wages paid to the day laborers for at least one year after the entry of the record. The Labor Department shall investigate complaints and enforce the provisions of the Day Laborer Act (SSecs. 50-15-6).
Violations; penalties.- A person who violates the provisions of the Day Laborer Act: (1) on a first offense, is guilty of a misdemeanor and upon conviction shall be sentenced pursuant to Sec. 31-19-1; and (2) for a second and subsequent offense, is guilty of a misdemeanor and shall be sentenced pursuant to Sec. 31-19-1 and shall be fined no less than $250 and not more than $1,000 for each offense for which the person is convicted, which fine shall not be suspended, deferred or taken under advisement. In addition to any other fees or fines that may be imposed on an offender convicted pursuant to this section, the court may order the offender to pay restitution pursuant to Sec. 31-17-1. Each occurrence of a violation for which a person is convicted is a separate offense. Multiple violations arising from transactions with the same person or multiple violations arising from transactions with different people shall be considered separate occurrences (Secs. 50-15-7).
NOTICE
Dispute over wages.- In case of a dispute over wages, the employer must give written notice to the employee of the amount of wages that it concedes to be due, and must pay the amount, without condition, within the times fixed by New Mexico's wage payment law (Sec. 50-4-7).
DEADLINES
Frequency of payment.- An employer in New Mexico must pay for services rendered from the first to the fifteenth days, inclusive, of any calendar month by the twenty-fifth day of the month during which services are rendered, and for all services rendered from the sixteenth to the last day of the month, inclusive, of any calendar month by the tenth day of the succeeding month. Where computation of earnings and of amounts due, preparation of payrolls and issuance of paychecks are at a central location outside New Mexico, the employer must pay for services rendered from the first to the fifteenth days, inclusive, of any calendar month by the last of the month during which services are rendered, and for all services rendered from the sixteenth to the last day of the month, inclusive, of any calendar month by the fifteenth day of the succeeding month (Sec. 50-4-2, as amended by Ch. 93 (S. 639), L. 2005).
Where the labor or service to be rendered to an employer is recompensed on a task, piece or commission basis or other method of calculating the amount of wages to be paid, other than a definite and fixed amount in cash, the employer and the employee may agree in writing at the time of hiring that the wages shall be paid on a monthly basis, on or before the tenth day of the succeeding calendar month (Sec. 50-4-2, as amended by Ch. 93 (S. 639), L. 2005).
Payment upon discharge.- Whenever an employer discharges an employee, the unpaid wages or compensation of the employee, if a fixed and definite amount, and not based on a task, piece, commission basis or other method of calculation, will, upon demand, become due immediately, and the employer must pay wages to the employee within five days of discharge. In all other cases of discharged employees, the settlement and payment of wages or compensation must be made within 10 days of discharge (Sec. 50-4-4).
Vacation pay.- Court interpretations include accrued vacation pay in the same category as wages that are of a fixed and definite and not variable type of compensation. The court did not define vacation pay as “wages” but rather, where accrued vacation was assumed by the parties to be payable, the court determined that accrued vacation was compensation of a fixed and definite amount (Sec. 50-4-4, as interpreted by the case of Wolf v. Sam's Town Furniture, NMCtApp 1995, 120 N.M. 603).
Payment when employee quits.- Whenever an employee (not having a written contract for a definite period) quits or resigns, the wages or compensation become due and are payable at the next succeeding payday (Sec. 50-4-5).
Payment of strikers.- If work is suspended as the result of an industrial dispute, the wages and compensation earned and unpaid at the time of suspension become due and payable at the next payday, including, without abatement or reduction, other than deductions as may be required by law, or as may be specified in the contract of hiring, all amounts due to all persons whose work has been suspended as a result of industrial dispute, together with any deposit or other guaranty held by the employer for the faithful performance of the duties of the employee (Sec. 50-4-6).
ENFORCEMENT
The Director of the Labor and Industry Division of the Labor Department enforces New Mexico's wage payment law (Sec. 50-4-8).
Payment upon discharge.- In case of failure to pay wages or compensation due a discharged employee within the time prescribed by New Mexico's wage payment law, the wages and compensation of the employee continue from the date of discharge until paid at the same rate the employee received at the time of discharge, and may be recovered in a civil action brought by the employee; provided, that the employee is not entitled to recover any wages or compensation for any period subsequent to the date of discharge unless he or she pleads in his or her complaint and establishes that demand was made within a reasonable time upon the employer at the place designated for payment and payment was refused. Employees may not recover any wages or compensation for any period subsequent to the sixtieth day after the date of discharge (Sec. 50-4-4).
See also WHAT THE EMPLOYER MUST DO above.
Assignment of claims.- The Director of the Labor and Industrial Division may take assignments of wage claims, of employees against employers, and may also take assignments of liens upon real or personal property securing the claims of employees and laborers (Sec. 50-4-11).
WHO TO CONTACT
Contact the Director of the Labor and Industry Division of the Labor Department at Aspen Plaza, 1596 Pacheco St., Santa Fe, NM 87502. Telephone: (505) 827-6808. Fax: (505) 827-6812.
RECORDKEEPING
Every employer must keep a true and accurate record of hours worked and wages paid to each employee. The employer must keep records on file for at least one year after the entry of the record (Sec. 50-4-9).
Inspection of records.- The Director of the Labor and Industrial Division and his or her authorized representatives have the right at all reasonable times to inspect records for the purpose of ascertaining whether the provisions of New Mexico's wage payment law are complied with (Sec. 50-4-9).
Day Laborer Act.- A day labor service agency shall maintain true and accurate records of the day laborers employed and of the hours worked and wages paid to the day laborers for at least one year after the entry of the record (Sec. 6, Ch. 257 (H. 672), L. 2005).
POSTING
Day Laborer Act.-Check cashing; notice of fees.- A day labor service agency or a check cashing service that is a day labor service agency or is operating within the office of a day labor service agency shall post notices in the area where cashing of checks or payment instruments occurs. The notices shall be clearly visible and easily readable and shall state the fee for cashing a check or payment instrument. Notices shall be posted in English, Spanish and any other written language where a high percentage of the workers speak that language. In areas where the day labor service agency employs Navajo workers and the check cashing service cashes checks of Navajo workers, notice shall be posted in Navajo (Secs. 50-15-5).
PENALTIES
An employer who violates or fails to comply with any provision of New Mexico's wage payment law is guilty of a misdemeanor, and upon conviction for a first offense shall be sentenced pursuant to Sec. 31-19-1 (Sec. 50-4-10(A), as amended by Ch. 257 (H. 672), L. 2005).
A person who is convicted of a second or subsequent offense of the wage payment law is guilty of a misdemeanor and shall be sentenced pursuant to Sec. 31-19-1, and shall be fined no less than $250 and not more than $1,000 for each offense for which the person is convicted, which fine shall not be suspended, deferred or taken under advisement (Sec. 50-4-10(B), as amended by Ch. 257 (H. 672), L. 2005).
If the employer is a corporation, the fine provided in this section shall be assessed against the corporation as a penalty (Sec. 50-4-10(D), as amended by Ch. 257 (H. 672), L. 2005).
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).
<p>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.</p>