laborlaw
05-25-2005, 01:43 PM
SECTION 50-4-21. DEFINITIONS
As used in the Minimum Wage Act: [50-4-19 to 50-4-30 NMSA 1978]
A. EMPLOY includes suffer or permit to work;
B. EMPLOYER includes any individual, partnership, association, corporation, business trust, legal representative or any organized group of persons employing one or more employees at one time, acting directly or indirectly in the interest of an employer in relation to any employee, but shall not include the United States, the state or any political subdivision thereof; and
C. EMPLOYEE includes any individual employed by an employer, but shall not include:
(1) any individual employed in domestic service in or about a private home;
(2) any individual employed in a bona fide executive, administrative or professional capacity and foremen, superintendents and supervisors;
(3) any individual employed by the United States or by the state or any political subdivision thereof;
(4) any individual engaged in the activities of an educational, charitable, religious or nonprofit organization where the employer-employee relationship does not, in fact, exist or where the services rendered to such organizations are on a voluntary basis. The employer-employee relationship shall not be deemed to exist with respect to any individual being served for purposes of rehabilitation by a charitable or nonprofit organization, notwithstanding the payment to the individual of a stipend based upon the value of the work performed by the individual;
(5) salesmen or employees compensated upon piecework, flat rate schedules or commission basis;
(6) students regularly enrolled in primary or secondary schools working after school hours or on vacation;
(7) registered apprentices and learners otherwise provided by law;
(8) persons eighteen years of age or under who are not students in a primary, secondary, vocational or training school;
(9) persons eighteen years of age or under who are not graduates of a secondary school;
(10) persons employed by ambulance services;
(11) G.I. bill trainees while under training;
(12) Seasonal employees of any employer obtaining and holding a valid certificate issued annually by the Director of Labor and Industrial Division. The certificate shall state the job designations and total number of employees to be exempted. In approving or disapproving an application for a certificate of exemption, the Director shall consider the following:
(a) whether such employment shall be at an educational, charitable or religious youth camp or retreat;
(b) that such employment will be of temporary nature;
(c) that the individual will be furnished his room and board in connection with such employment, or if the camp or retreat is a day camp or retreat, the individual will be furnished board in connection with such employment;
(d) the purposes for which the camp or retreat is operated;
(e) the job classifications for the positions to be exempted; and
(f) any other factors that the Director deems necessary to consider;
(13) any employee employed in agriculture:
(a) if such employee is employed by an employer who did not, during any calendar quarter during the preceding calendar year, use more than five hundred man-days of agricultural labor;
(b) if such employee is the parent, spouse, child or, any other member of his employer’s immediate family; for the purpose of this subsection, employer shall include the principal stockholder of a family corporation;
(c) if such employee: 1) is employed as a hand harvest laborer and is paid on a piece rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece-rate basis in the region of employment; 2) commutes daily from his permanent residence to the farm on which he is so employed; and 3) has been employed in agriculture less than 13 weeks during the preceding calendar year;
(d) if such employee other than an employee described in Subparagraph (C) of this paragraph:
1) is sixteen years of age or under and is employed as a hard harvest laborer, is paid on a piece rate basis in an operation which has been, and is generally recognized as having been, paid on a piece rate basis in the region of employment;
2) is employed on the same farm as his parent or person standing in the place of his parent; and 3) is paid at the same piece-rate as employees over age sixteen are paid on the same farm; or (e) is such employee is principally engaged in the range production of livestock; or
(14) employees of charitable, religious or nonprofit organizations who reside on the premises of group homes operated by such charitable, religious or nonprofit organizations for mentally retarded or emotionally or developmentally disabled persons.
SECTION 50-4-22, MINIMUM WAGES
A. Every employer, except as provided in Section 50-4-21
NMSA 1978, shall pay the minimum wage rate of $5.15 an hour excepting that an employer furnishing food, utilities, supplies or housing to an employee who is engaged in agriculture may deduct the reasonable value of such furnished items from any wages due to the employee.
B. All employees covered by Subsection A of this section who customarily and regularly receive more than thirty dollars ($30.00) a month in tips shall be paid a minimum hourly wage of two dollars twelve and one half cents ($2.125).
The employer may consider tips as part of wages, but such a wage credit shall not exceed fifty percent of the minimum wage. All tips received by such employees shall be retained by the employee, except that nothing herein shall prohibit the pooling of tips among employees.
C. No employee covered by the provisions of Subsection A of this section shall be required to work more than forty hours in any week of seven days, unless he is paid one and one half times his regular hourly rate of pay for all hours worked in excess of forty hours.
SECTION 50-4-24. EMPLOYERS EXEMPT FROM OVERTIME PROVISIONS FOR CERTAIN EMPLOYEES
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 is employed for a period of not more than fourteen weeks in the aggregate in any calendar year, is exempt from the overtime provisions of Subsection D of Section 50-4-22
NMSA 1978.
SECTION 50-4-25. POSTING OF SUMMARY OF THE ACT
Every employer subject to the Minimum Wage Act [Section 50-4-19 to 50-4-30 NMSA 1978] shall keep a summary of it, furnished by the Director of Labor and Industrial Division without charge, posted in a conspicuous place on or about the premises wherein any person subject to the Minimum Wage Act is employed, and the summary shall clearly and conspicuously set forth the current minimum wage.
SECTION 50-4-26. ENFORCEMENT
A. Penalties: (1) any employer who violates any of the foregoing provisions shall be deemed guilty of a misdemeanor and shall be punished by a fine of not less than twenty-five dollars ($25.00) or more than three hundred dollars ($300.00) or by imprisonment for not less than ten nor more than ninety days or by both such fine and imprisonment; (2) it shall be the duty of the Director of Labor and Industrial Division to enforce and prosecute violations of the Minimum Wage Act [50-4-19 to 50-4-30 NMSA 1978]. The Director is hereby empowered to institute in the name of the state of New Mexico an action in the district court of the county wherein the employer who has failed to comply with Minimum Wage Act resides, or has his principal office or place of business for the purpose of prosecuting violations. It shall be the duty of the district attorney for the district wherein any violation hereof occurs to aid and assist the Director of Labor and Industrial Division in the prosecution thereof.
B. Employees’ Remedies: (1) any employer who violates any provision of Section 50-4-22 NMSA 1978 shall be liable to the employees affected in the amount of their unpaid minimum wages, as the case may be, and in an additional equal amount as liquidated damages; (2) action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf [behalf] of himself or themselves and other employees similarly situated or such employee or employees may designate an agent or representative to maintain such action before and in behalf of all employees similarly situated. The court in any action brought under Paragraph (2) shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow costs of the action and reasonable attorneys’ fees to be paid by the defendant. In any proceedings brought pursuant to the provisions of this section, the employee shall not be required to pay any filing fee or other court costs necessarily incurred in such proceedings.
SECTION 50-4-27. AUTHORITY OF DIRECTOR OF THE LABOR AND INDUSTRIAL DIVISION TO PROMULGATE
RULES; HEARING ON RULES; NOTICE; PUBLICATION
The Director of the Labor and Industrial division shall have the authority to promulgate and issue rules and regulations necessary to administer and accomplish the purposes of the Minimum Wage Act [50-4-19 to 50-4-30 NMSA 1978]. Such rules and regulations shall be adopted after notice and public hearing. A copy of the notice of hearing together with a copy of the proposed regulations shall be filed with the librarian of the supreme court library at least twenty days prior to the hearing. In addition, a copy of the notice of hearing shall be sent to all known interested persons. Any VIOLATIONS should be reported promptly to the New Mexico Department of Labor, Labor and Industrial Division at:
As used in the Minimum Wage Act: [50-4-19 to 50-4-30 NMSA 1978]
A. EMPLOY includes suffer or permit to work;
B. EMPLOYER includes any individual, partnership, association, corporation, business trust, legal representative or any organized group of persons employing one or more employees at one time, acting directly or indirectly in the interest of an employer in relation to any employee, but shall not include the United States, the state or any political subdivision thereof; and
C. EMPLOYEE includes any individual employed by an employer, but shall not include:
(1) any individual employed in domestic service in or about a private home;
(2) any individual employed in a bona fide executive, administrative or professional capacity and foremen, superintendents and supervisors;
(3) any individual employed by the United States or by the state or any political subdivision thereof;
(4) any individual engaged in the activities of an educational, charitable, religious or nonprofit organization where the employer-employee relationship does not, in fact, exist or where the services rendered to such organizations are on a voluntary basis. The employer-employee relationship shall not be deemed to exist with respect to any individual being served for purposes of rehabilitation by a charitable or nonprofit organization, notwithstanding the payment to the individual of a stipend based upon the value of the work performed by the individual;
(5) salesmen or employees compensated upon piecework, flat rate schedules or commission basis;
(6) students regularly enrolled in primary or secondary schools working after school hours or on vacation;
(7) registered apprentices and learners otherwise provided by law;
(8) persons eighteen years of age or under who are not students in a primary, secondary, vocational or training school;
(9) persons eighteen years of age or under who are not graduates of a secondary school;
(10) persons employed by ambulance services;
(11) G.I. bill trainees while under training;
(12) Seasonal employees of any employer obtaining and holding a valid certificate issued annually by the Director of Labor and Industrial Division. The certificate shall state the job designations and total number of employees to be exempted. In approving or disapproving an application for a certificate of exemption, the Director shall consider the following:
(a) whether such employment shall be at an educational, charitable or religious youth camp or retreat;
(b) that such employment will be of temporary nature;
(c) that the individual will be furnished his room and board in connection with such employment, or if the camp or retreat is a day camp or retreat, the individual will be furnished board in connection with such employment;
(d) the purposes for which the camp or retreat is operated;
(e) the job classifications for the positions to be exempted; and
(f) any other factors that the Director deems necessary to consider;
(13) any employee employed in agriculture:
(a) if such employee is employed by an employer who did not, during any calendar quarter during the preceding calendar year, use more than five hundred man-days of agricultural labor;
(b) if such employee is the parent, spouse, child or, any other member of his employer’s immediate family; for the purpose of this subsection, employer shall include the principal stockholder of a family corporation;
(c) if such employee: 1) is employed as a hand harvest laborer and is paid on a piece rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece-rate basis in the region of employment; 2) commutes daily from his permanent residence to the farm on which he is so employed; and 3) has been employed in agriculture less than 13 weeks during the preceding calendar year;
(d) if such employee other than an employee described in Subparagraph (C) of this paragraph:
1) is sixteen years of age or under and is employed as a hard harvest laborer, is paid on a piece rate basis in an operation which has been, and is generally recognized as having been, paid on a piece rate basis in the region of employment;
2) is employed on the same farm as his parent or person standing in the place of his parent; and 3) is paid at the same piece-rate as employees over age sixteen are paid on the same farm; or (e) is such employee is principally engaged in the range production of livestock; or
(14) employees of charitable, religious or nonprofit organizations who reside on the premises of group homes operated by such charitable, religious or nonprofit organizations for mentally retarded or emotionally or developmentally disabled persons.
SECTION 50-4-22, MINIMUM WAGES
A. Every employer, except as provided in Section 50-4-21
NMSA 1978, shall pay the minimum wage rate of $5.15 an hour excepting that an employer furnishing food, utilities, supplies or housing to an employee who is engaged in agriculture may deduct the reasonable value of such furnished items from any wages due to the employee.
B. All employees covered by Subsection A of this section who customarily and regularly receive more than thirty dollars ($30.00) a month in tips shall be paid a minimum hourly wage of two dollars twelve and one half cents ($2.125).
The employer may consider tips as part of wages, but such a wage credit shall not exceed fifty percent of the minimum wage. All tips received by such employees shall be retained by the employee, except that nothing herein shall prohibit the pooling of tips among employees.
C. No employee covered by the provisions of Subsection A of this section shall be required to work more than forty hours in any week of seven days, unless he is paid one and one half times his regular hourly rate of pay for all hours worked in excess of forty hours.
SECTION 50-4-24. EMPLOYERS EXEMPT FROM OVERTIME PROVISIONS FOR CERTAIN EMPLOYEES
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 is employed for a period of not more than fourteen weeks in the aggregate in any calendar year, is exempt from the overtime provisions of Subsection D of Section 50-4-22
NMSA 1978.
SECTION 50-4-25. POSTING OF SUMMARY OF THE ACT
Every employer subject to the Minimum Wage Act [Section 50-4-19 to 50-4-30 NMSA 1978] shall keep a summary of it, furnished by the Director of Labor and Industrial Division without charge, posted in a conspicuous place on or about the premises wherein any person subject to the Minimum Wage Act is employed, and the summary shall clearly and conspicuously set forth the current minimum wage.
SECTION 50-4-26. ENFORCEMENT
A. Penalties: (1) any employer who violates any of the foregoing provisions shall be deemed guilty of a misdemeanor and shall be punished by a fine of not less than twenty-five dollars ($25.00) or more than three hundred dollars ($300.00) or by imprisonment for not less than ten nor more than ninety days or by both such fine and imprisonment; (2) it shall be the duty of the Director of Labor and Industrial Division to enforce and prosecute violations of the Minimum Wage Act [50-4-19 to 50-4-30 NMSA 1978]. The Director is hereby empowered to institute in the name of the state of New Mexico an action in the district court of the county wherein the employer who has failed to comply with Minimum Wage Act resides, or has his principal office or place of business for the purpose of prosecuting violations. It shall be the duty of the district attorney for the district wherein any violation hereof occurs to aid and assist the Director of Labor and Industrial Division in the prosecution thereof.
B. Employees’ Remedies: (1) any employer who violates any provision of Section 50-4-22 NMSA 1978 shall be liable to the employees affected in the amount of their unpaid minimum wages, as the case may be, and in an additional equal amount as liquidated damages; (2) action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf [behalf] of himself or themselves and other employees similarly situated or such employee or employees may designate an agent or representative to maintain such action before and in behalf of all employees similarly situated. The court in any action brought under Paragraph (2) shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow costs of the action and reasonable attorneys’ fees to be paid by the defendant. In any proceedings brought pursuant to the provisions of this section, the employee shall not be required to pay any filing fee or other court costs necessarily incurred in such proceedings.
SECTION 50-4-27. AUTHORITY OF DIRECTOR OF THE LABOR AND INDUSTRIAL DIVISION TO PROMULGATE
RULES; HEARING ON RULES; NOTICE; PUBLICATION
The Director of the Labor and Industrial division shall have the authority to promulgate and issue rules and regulations necessary to administer and accomplish the purposes of the Minimum Wage Act [50-4-19 to 50-4-30 NMSA 1978]. Such rules and regulations shall be adopted after notice and public hearing. A copy of the notice of hearing together with a copy of the proposed regulations shall be filed with the librarian of the supreme court library at least twenty days prior to the hearing. In addition, a copy of the notice of hearing shall be sent to all known interested persons. Any VIOLATIONS should be reported promptly to the New Mexico Department of Labor, Labor and Industrial Division at:
