SENATE BILL 899

47th legislature - STATE OF NEW MEXICO - first session, 2005

INTRODUCED BY

John Arthur Smith

AN ACT

RELATING TO MINIMUM WAGES; CLARIFYING THE MINIMUM WAGE FOR TIPPED EMPLOYEES.

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

     Section 1. Section 50-4-22 NMSA 1978 (being Laws 1955, Chapter 200, Section 3, as amended) is amended to read:

     "50-4-22. MINIMUM WAGES.--

          A. An employer, except as provided in Section 50-4-21 NMSA 1978, shall pay the minimum wage rate of five dollars fifteen cents ($5.15) an hour, except 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 in this section shall prohibit the pooling of tips among employees.]

          B. In determining the wage an employer is required to pay a tipped employee who customarily and regularly receives more than thirty dollars ($30.00) a month, the amount paid the employee by the employer shall be an amount equal to:

                (1) the cash wage paid the employee that for purposes of such determination shall be not less than two dollars thirteen cents ($2.13) an hour; and

                (2) an additional amount on account of tips received by the employee, which amount is equal to the difference between the wage specified in Paragraph (1) of this subsection and the wage specified in Subsection A of this section.

          C. The additional amount on account of tips may not exceed the value of the tips actually received by the employee. The provisions of Subsection B of this section shall not apply with respect to any tipped employee unless the employee has been informed by the employer of the provisions of that subsection and all tips received by the employee have been retained by the employee; provided that nothing in this subsection or Subsection B of this section shall be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips.

          [C.] D. An employee covered by the provisions of Subsection A of this section shall not 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. 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] rules pursuant to that act; provided that in no case shall the hourly rate be less than the federal minimum wage."

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