2018 New Mexico Statutes
Chapter 50 - Employment Law
Article 4 - Labor Conditions; Payment of Wages
Section 50-4-26 - Enforcement; penalties; employees' remedies.

Universal Citation: NM Stat § 50-4-26 (2018)
50-4-26. Enforcement; penalties; employees' remedies.

A. An employer who violates any of the provisions of the Minimum Wage Act is guilty of a misdemeanor and upon conviction shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.

B. The director of the labor relations division of the workforce solutions department shall enforce and prosecute violations of the Minimum Wage Act. The director may institute in the name of the state an action in the district court of the county wherein the employer who has failed to comply with the Minimum Wage Act resides or has a principal office or place of business, for the purpose of prosecuting violations. The district attorney for the district wherein any violation hereof occurs shall aid and assist the director in the prosecution.

C. In addition to penalties provided pursuant to this section, an 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 or underpaid minimum wages plus interest, and in an additional amount equal to twice the unpaid or underpaid wages.

D. An action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and on behalf of the employee or employees and for other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action on behalf of all employees similarly situated.

E. The court in any action brought under Subsection D of this section shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow costs of the action and reasonable attorney 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.

F. In addition to any remedy or punishment provided pursuant to the Minimum Wage Act, a court may order appropriate injunctive relief, including requiring an employer to post in the place of business a notice describing violations by the employer as found by the court or a copy of a cease and desist order applicable to the employer.

G. Civil actions and appeals of civil actions brought to collect unpaid or underpaid wages, interest and any other amounts due under this section shall be heard by the court at the earliest possible date and shall be entitled to a preference over all other civil actions, to the same extent as civil actions to collect contributions pursuant to Section 51-1-36 NMSA 1978, on the calendar of the court.

History: 1953 Comp., § 59-3-24, enacted by Laws 1955, ch. 200, § 5; 1967, ch. 188, § 4; 2009, ch. 104, § 4; 2013, ch. 182, § 1.

ANNOTATIONS

The 2013 amendment, effective June 14, 2013, provided that civil actions and appeals brought to collect unpaid or underpaid wages shall have the same preference to be heard by the court as civil actions to collect unemployment contributions; and added Subsection G.

The 2009 amendment, effective June 19, 2009, in Subsection A, deleted "Penalties: (1) Any"; changed "foregoing provisions shall be deemed" to "provisions of the Minimum Wage Act is"; deleted the former language that provided for a fine of not less than $25 or more than $300 or imprisonment for not less than 10 or more than 90 days, or both a fine and imprisonment; and added the remainder of the sentence following "misdemeanor and"; in Subsection B, added "The director of the labor relations division of the workforce solutions department shall" at the beginning of the sentence; and at the beginning of the third sentence, deleted "It shall be the duty of"; in Subsection C, deleted "Employee's remedies: (1) Any" and added "In addition to penalties provided pursuant to this section, an"; changed the reference from Section 59-3-22 NMSA 1978 to Section 50-4-22 NMSA 1978; after "unpaid", added "or underpaid", and deleted "as the case may be, and in an additional equal amount as liquidated damages", and added the language after "minimum wages"; in Subsection E, deleted "Paragraph (2)" and added "Subsection D of this section"; and added Subsection F.

Standard to determine when employees are similarly situated. — The "two-tiered" or "ad hoc" approach is the proper standard to apply to collective actions. At the initial notice stage determination of whether plaintiffs are similarly situated, the plaintiff need only present substantial allegations that the putative class members were together the victims of a single decision, policy or plan. At the second stage, the court must revisit the initial determination by considering whether the class members have disparate factual and employment settings; whether the available defenses to the claims are individual to each class member; and whether there are any fairness or procedural considerations relevant to the action. Armijo v. Wal-Mart Stores, Inc., 2007-NMCA-120, 142 N.M. 557, 168 P.3d 129, cert. denied, 2007-NMCERT-009, 142 N.M. 715, 169 P.3d 408.

Initial notice stage determination of whether plaintiffs are similarly situated. — 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.

Penalty provision in subsection C 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).

Wage collection authority. — This article and article 4 of this chapter do not specifically provide the division with the authority to issue judgments or warrants for the collection of wages due; rather, these statutes simply allow the division to prosecute a wage collection action in magistrate court or district court if it determines that an employee's wage claim is "valid and enforceable." Southworth v. Santa Fe Servs. Inc., 1998-NMCA-109, 125 N.M. 489, 963 P.2d 566.

Summary judgment erroneous in wage claim. — Employer's affidavit that employee was salaried, and thus not entitled to overtime, and had not accrued vacation time under her employment contract and employer's vacation policy, combined with a copy of the employment contract and other documentation, was sufficient to establish that there were disputed issues of fact concerning employer's liability for overtime and vacation pay which precluded summary judgment. Southworth v. Santa Fe Servs. Inc., 1998-NMCA-109, 125 N.M. 489, 963 P.2d 566.

Standard of review. — Action under Subsection B was separate from employee's administrative action brought before labor department; it was not a substitute for an appeal and thus the district court was not required to apply the whole-record standard of review applicable to a review of an administrative decision. Southworth v. Santa Fe Servs. Inc., 1998-NMCA-109, 125 N.M. 489, 963 P.2d 566.

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

73A C.J.S. Public Administrative Law and Procedure § 172 et seq.

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