2018 New Mexico Statutes
Chapter 50 - Employment Law
Article 4 - Labor Conditions; Payment of Wages
Section 50-4-22 - Minimum wages.

Universal Citation: NM Stat § 50-4-22 (2018)
50-4-22. Minimum wages.

A. An employer shall pay an employee the minimum wage rate of six dollars fifty cents ($6.50) an hour. As of January 1, 2009, an employer shall pay the minimum wage rate of seven dollars fifty cents ($7.50) an hour.

B. 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.

C. An employee who customarily and regularly receives more than thirty dollars ($30.00) a month in tips shall be paid a minimum hourly wage of two dollars thirteen cents ($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 minimum wage rate as provided in Subsection A of this section. All tips received by such employees shall be retained by the employee, except that nothing in this section shall prohibit the pooling of tips among employees.

D. An employee shall not be required to work more than forty hours in any week of seven days, 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 forty hours. 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 provisions of the federal Fair Labor Standards Act of 1938 and the regulations pursuant to that act; provided that in no case shall the hourly rate be less than the federal minimum wage.

History: 1953 Comp., § 59-3-22, enacted by Laws 1955, ch. 200, § 3; 1957, ch. 161, § 1; 1963, ch. 227, § 3; 1965, ch. 121, § 2; 1967, ch. 188, § 2; 1973, ch. 392, § 2; 1975 (1st S.S.), ch. 3, § 2; 1979, ch. 269, § 2; 1983, ch. 59, § 1; 1993, ch. 217, § 1; 1999, ch. 164, § 1; 2003, ch. 262, § 1; 2005, ch. 302, § 1; 2005, ch. 306, § 1; 2007, ch. 47, § 2.

ANNOTATIONS

Cross references. — For time-and-a-half for more than 40 hours for females, see 50-5-1 NMSA 1978.

For time-and-a-half for more than 48 hours for females, see 50-5-7 NMSA 1978.

For time-and-a-half for more than 56 hours for female transportation company employees, see 50-5-14 NMSA 1978.

For the federal Fair Labor Standards Act, see 29 U.S.C. § 201 et seq.

The 2007 amendment, effective January 1, 2008, in Subsection A, increased the minimum wage from $5.15 to $6.50 an hour, effective January 1, 2008 and from $6.50 to $7.50, effective January 1, 2009.

The 2005 amendment, effective June 17, 2005, changed the minimum hourly wage of employees who receive more than $30 a month in tips from $2.125 to $2.13 in Subsection B; deleted the former provision in Subsection B that an employer may consider tips a part of wages, but not to exceed fifty percent of the minimum wage, and provided in Subsection B that tips may be considered part of wages, but tips combined with the employer's cash wage shall not equal less than $5.60 per hour.

The 2003 amendment, effective June 20, 2003, substituted "five dollars fifteen cents ($5.15)" for "four dollars twenty-five cents ($4.25)" near the middle of Subsection A.

The 1999 amendment, effective June 18, 1999, added the last sentence in Subsection C and made minor stylistic changes.

The 1993 amendment, effective July 1, 1993, rewrote this section to the extent that a detailed comparison is impracticable.

Meaning of "any week of seven days". — The phrase "any week of seven days" in Subsection C of Section 50-4-22 NMSA 1978 means a fixed and regularly recurring workweek established by the employer consistent with the federal Fair Labor Standards Act and regulations promulgated under the authority of the Fair Labor Standards Act. Sinclaire v. Elderhostel, Inc., 2012-NMCA-100, 287 P.3d 978.

Where defendant's established workweek was from 12:01 a.m. Sunday to midnight the following Saturday; plaintiff led educational tours for defendant, some of which corresponded with the Sunday to Saturday workweek and some of which began on Wednesday and concluded the following Wednesday; if plaintiff worked from Wednesday to Wednesday, plaintiff received two hours of overtime in the first Sunday to Saturday workweek and eight hours of overtime in the in the second workweek; if plaintiff worked more than forty hours during a Sunday to Saturday week, plaintiff received time and a half for each hour over forty hours; and plaintiff claimed that defendant should have paid plaintiff overtime based on the seven-day week plaintiff actually worked, rather than on the Sunday to Saturday workweek, defendant's establishment of the fixed Sunday to Saturday workweek qualified as a "week of seven days" under Subsection C of Section 50-4-22 NMSA 1978. Sinclaire v. Elderhostel, Inc., 2012-NMCA-100, 287 P.3d 978.

Plaintiff's claim survived dismissal where it was alleged that he routinely worked over forty hours and was denied overtime pay. — In a federal class action lawsuit, where plaintiff claimed that defendant employer regularly scheduled class members to work for a minimum of 12 hours per day and a minimum of 84 hours per week, that class members routinely worked over 80 hours per week, and that defendant failed to pay class members any overtime premium for all hours worked in excess of 40 per workweek, and where defendant moved to dismiss, claiming that plaintiff failed to plead sufficient facts to support a reasonable inference that plaintiff received less than the overtime pay due because plaintiff failed to identify a specific workweek in which he worked more than 40 hours and was denied overtime pay, plaintiff was not required to specify a particular workweek in which he worked more than 40 hours because plaintiff alleged that the general length of hours worked in a week was over 84 hours, well above the 40-hour threshold, and this provides defendant with a sufficient factual context to nudge plaintiff's claim from conceivable to plausible to state a claim for relief for failure to pay overtime as required by the Minimum Wage Act. Gandy v. RWLS, LLC, 308 F.Supp.3d 1220 (D.N.M. 2018).

Contract for diminishing overtime wages. — An employer and employee may not agree to a fluctuating rate of pay, pursuant to which the employee is paid a fixed weekly salary plus an overtime factor of one-half of the hourly rate, which hourly rate is calculated such that it decreases as the number of hours worked increases because the agreement conflicts with the prohibition against overtime paid at less than time and a half. N.M. Dep't of Labor v. Echostar Commc'ns Corp., 2006-NMCA-047, 139 N.M. 493, 134 P.3d 780, cert. quashed, 2006-NMCERT-010, 140 N.M. 675, 146 P.3d 810.

"Required to work" includes subtle pressures. — Overtime pay is mandatory when an employee covered by the Minimum Wage Act (Section 50-4-19 NMSA 1978 et seq.) works more than forty hours in a seven-day week with the employer's knowledge and consent, and where there is any pressure by the employer, however subtle, to perform such work. N.M. Dep't of Labor v. A.C. Elec., Inc., 1998-NMCA-141, 125 N.M. 779, 965 P.2d 363.

"Banked" time off violates minimum wage laws. — Employer cannot avoid overtime payments to employees by offering them "banked" time off in exchange for working uncompensated overtime. N.M. Dep't of Labor v. A.C. Elec., Inc., 1998-NMCA-141, 125 N.M. 779, 965 P.2d 363.

Conditional class certification under the Minimum Wage Act. — Where plaintiffs, five non-exempt employees of a non-profit, integrated acute care hospital, brought a putative collective and class action alleging that their employer failed to pay plaintiffs and other non-exempt employees for time they spent working during meal breaks in violation of the Minimum Wage Act (MWA), the district court erred in denying plaintiffs' motion to conditionally certify a collective action, because plaintiffs' allegations, supported by affidavits, that the putative class was sometimes required to work through meal breaks, but not compensated for such work, and that such potential violations of the MWA stemmed from a single policy or plan to not only schedule workers in such a way that missing meal periods was sometimes unavoidable, but also to discourage employees from using the "no lunch" button that would have resulted in full compensation for time worked, satisfy the minimal standards associated with the notice stage determination of whether plaintiffs are similarly situated. Sloane v. Rehoboth McKinley Christian Health Care Servs., 2018-NMCA-048.

Municipal employers. — Municipalities, as political subdivisions of the state, are not "employers" as defined by the Minimum Wage Act and are therefore exempt from the overtime compensation requirements of the act, but when a municipality elects to provide overtime compensation, it must comply with the overtime compensation schedule set forth in 50-4-2 NMSA 1978. Rainaldi v. City of Albuquerque, 2014-NMCA-112.

Administrative employee not entitled to unpaid overtime. — Where plaintiff brought a claim for unpaid overtime wages under the Minimum Wage Act (MWA), 50-4-19 to -30 NMSA 1978, the evidence presented at trial that plaintiff's $600 weekly salary was higher than the minimum wage for non-exempt employees under the MWA, that plaintiff's primary duties were related to management or general office operations, and involved the exercise of discretion and independent judgment with respect to matters of significance, including signing contracts with vendors, that plaintiff held herself out as an office manager, that plaintiff dealt with employee discipline and payroll issues, and that plaintiff managed patient information, including bill collection, insurance collection and payments, provided a substantial evidentiary basis for the district court to conclude that plaintiff was an exempt administrative employee under the MWA, and therefore not entitled to unpaid overtime wages. Williams v. Mann, 2017-NMCA-012.

Penalty provision applies to both minimum wage and overtime claims. — When 50-4-26(C) NMSA 1978 refers to "minimum wages" in its plural form, particularly where it follows the broad "any provision" introductory language, it is clear that the legislature contemplated an award of liquidated damages to both minimum wage and overtime claimants bringing a claim under any provision of 50-4-22 NMSA 1978. Armijo v. FedEx Ground Package System, Inc., 285 F.Supp.3d 1209 (D.N.M. 2018).

Where plaintiff executed a contract with defendant to work as a "pickup and delivery contractor", and where plaintiff, after three years as a contractor, brought a claim against defendant, alleging that defendant violated the Minimum Wage Act, §§ 50-4-19 through -30 NMSA 1978, by failing to pay drivers overtime pay for hours worked over 40 in one week, defendant's claim that § 50-4-26(C) NMSA 1978 applies only to violations of the minimum wage provisions, not to the overtime provisions of § 50-4-22 NMSA 1978, was without merit, because the plural "minimum wages" language in § 50-4-26(C) NMSA 1978 provides for damages for claimants bringing a claim under "any provision" of § 50-4-22 NMSA 1978. Armijo v. FedEx Ground Package System, Inc., 285 F.Supp.3d 1209 (D.N.M. 2018).

Act not preempted by federal law or collective bargaining agreement. — New Mexico Minimum Wage Act (Section 50-4-19 NMSA 1978 et seq.) claims brought by union workers covered by a collective bargaining agreement were not preempted by Section 301 of the Labor Management Act, 29 U.S.C. § 185 and were not preempted by the remedies provided by the agreement; the claims were based on non-negotiable state law rights which could be resolved independently of the labor agreement. Self v. UPS, 1998-NMSC-046, 126 N.M. 396, 970 P.2d 582.

Travel time is not compensable under the Minimum Wage Act. — The general rule is that commuting time to and from a job site is not compensable absent an agreement to the contrary. The Minimum Wage Act, being silent on travel time, does not create an exception to the general rule. Segura v. J.W. Drilling, Inc., 2015-NMCA-085, cert. denied, 2015-NMCERT-008.

Where employees claimed that employer failed to pay them for overtime wages for the time spent traveling from their homes to employer's job sites, the New Mexico court of appeals declined to deviate from the general rule that commuting time to and from a job site is not compensable when the Minimum Wage Act is silent on travel time. Segura v. J.W. Drilling, Inc., 2015-NMCA-085, cert. denied, 2015-NMCERT-008.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 48A Am. Jur. 2d Labor and Labor Relations § 4188 et seq.

Validity of minimum wage statutes relating to private employment, 39 A.L.R.2d 740.

Tips as wages, 65 A.L.R.2d 974.

Vacation pay rights of private employees not covered by collective labor contract, 33 A.L.R.4th 264.

Who is executive, administrator, supervisor, or the like, under exemption for such employees from state minimum wage and overtime pay statutes, 85 A.L.R.4th 519.

Employee training time as exempt from minimum wage and overtime requirements of Fair Labor Standards Act, 80 A.L.R. Fed. 246.

51B C.J.S. Labor Relations § 1017 et seq.

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