46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO WAGES; PROHIBITING WAGE DISCRIMINATION BASED UPON GENDER; PROVIDING FOR ENFORCEMENT OF THE PROHIBITION; PROVIDING PUBLIC AND PRIVATE REMEDIES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. PROHIBITION AGAINST WAGE DISCRIMINATION BASED UPON GENDER.--

A. An employer shall not pay an employee a wage rate that is lower than the wage rate paid to an employee of the opposite gender in the same establishment for equal work on a job that requires equal skill, effort and responsibility and that is performed under similar working conditions except where the payment is made pursuant to the following:

(1) a seniority system;

(2) a merit system;

(3) a system that measures earnings by quantity or quality of production; or

(4) a differential based on a factor other than gender.

B. Notwithstanding an agreement to work for a lower wage, an employee receiving less than the wage to which the employee is entitled may recover in a civil action from the employer who violates Subsection A of this section:

(1) three times the amount of wages of which the employee has been deprived because of the violation and interest upon the amount from the date of the accrual of damages at the rate for interest set forth in Subsection A of Section 56-8-4 NMSA 1978; and

(2) costs of the suit, including reasonable attorney fees.

C. The provisions of this section shall be administered and enforced by the human rights division of the labor department. If the division finds that an employer has violated this section, it shall supervise the payment of wages and interest found to be due and unpaid to employees pursuant to Paragraph (1) of Subsection B of this section. Acceptance of full payment from an employer, as approved by the division, shall constitute a waiver by the employee of the cause of action available pursuant to this section.

D. An employee may file a complaint with the division that the wages paid are less than the wages to which the employee is entitled pursuant to this section. The division shall keep confidential the name of an employee who files a complaint regarding an alleged violation of Subsection A of this section until it establishes validity of the complaint or unless it must abridge the confidentiality in order to investigate the complaint. The name of the complaining employee shall remain confidential if the complaint is withdrawn before the confidentiality is abridged by the division. The division shall take the proceedings necessary to enforce the payment of money found to be due and unpaid to the employee.

E. Unless otherwise requested by the employee, the division may bring a civil action on behalf of an employee to recover the amount to which the employee is entitled pursuant to Subsection B of this section. An employee shall waive the private cause of action available pursuant to this section if the employee consents to the division bringing the action unless that action is dismissed without prejudice. The employee may intervene in the suit or initiate independent action if the suit has not been determined within one hundred eighty days from the date of filing the complaint.

F. A civil action to recover wages pursuant to this section shall not be commenced later than two years after the cause of action occurs. A civil action arising out of a willful violation shall not be commenced later than three years after the cause of action occurs.

G. If an employee recovers amounts due the employee pursuant to this section and also files a complaint or brings an action pursuant to 29 U.S.C. 206(d) that results in an additional recovery under federal law for the same violation, the employee shall return to the employer the amount recovered pursuant to this section or the amount recovered under federal law, whichever is less.

Section 2. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2003.