HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE BILL 489

49th legislature - STATE OF NEW MEXICO - first session, 2009

AN ACT

RELATING TO PAYMENT OF WAGES; PROVIDING EMPLOYEES PROTECTION FROM RETALIATION; EXTENDING THE STATUTE OF LIMITATIONS PERIOD; PROVIDING FOR INJUNCTIVE RELIEF; INCREASING LIABILITY FOR FAILURE TO PAY WAGES; PROVIDING PENALTIES.

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

     Section 1. Section 37-1-5 NMSA 1978 (being Laws 1947, Chapter 44, Section 1) is amended to read:

     "37-1-5. ACTIONS FOR WAGE AND HOUR VIOLATIONS.--[All suits and actions for the recovery of unpaid overtime compensation or damages in connection therewith, whether arising under contract or a state or a federal law or administrative ruling, shall be brought within one (1) year after the accrual of such a cause of action or three (3) months after this Act takes effect, whichever is the later and not thereafter. Nothing in this Act shall be construed as reviving or extending any cause of action which may now or hereafter be barred by any other statute.] A civil action to enforce any provision of Chapter 50, Article 4 NMSA 1978 shall be commenced within three years after a violation last occurs. The three-year period shall be tolled during a labor relations division of the workforce solutions department investigation of an employer, but such an investigation shall not be deemed a prerequisite to a person bringing a civil action, nor shall it operate to bar a civil action brought pursuant to Chapter 50, Article 4 NMSA 1978."

     Section 2. A new section of Chapter 50, Article 4 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] CONTINUING COURSE OF CONDUCT.--A civil action to enforce any provision of Chapter 50, Article 4 NMSA 1978 may encompass all violations that occurred as part of a continuing course of conduct regardless of the date on which they occurred."

     Section 3. A new section of the Minimum Wage Act is enacted to read:

     "[NEW MATERIAL] RETALIATION PROHIBITED.--It is a violation of the Minimum Wage Act for an employer or any other person to discharge, demote, deny promotion to or in any other way discriminate against a person in the terms or conditions of employment in retaliation for the person asserting a claim or right pursuant to the Minimum Wage Act or assisting another person to do so or for informing another person about employment rights or other rights provided by law."

     Section 4. Section 50-4-26 NMSA 1978 (being Laws 1955, Chapter 200, Section 5, as amended) is amended to read:

     "50-4-26. ENFORCEMENT--PENALTIES--EMPLOYEES' REMEDIES.--

          A. [Penalties: (1) Any] An employer who violates any of the [foregoing] provisions [shall be deemed] of the Minimum Wage Act is guilty of a misdemeanor and [shall be punished by a fine of not less than twenty-five dollars ($25) or more than three hundred dollars ($300) or by imprisonment for not less than ten nor more than ninety days or by both such fine and imprisonment] upon conviction shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.

          [(2) It shall be the duty of the state labor commissioner to] B. The director of the labor relations division of the workforce solutions department shall enforce and prosecute violations of the Minimum Wage Act. The [labor commissioner is hereby empowered to] director may 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 the Minimum Wage Act resides or has [his] a 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] shall aid and assist the [labor commissioner] director in the prosecution. [thereof.

          B. Employees' remedies: (1) Any] C. In addition to penalties provided pursuant to this section, an employer who violates any provision of Section [59-3-22 New Mexico Statutes Annotated, 1953 Compilation] 50-4-22 NMSA 1978 shall be liable to the employees affected in the amount of their unpaid or underpaid minimum wages [as the case may be, and in an additional equal amount as liquidated damages] plus interest, and in an additional amount equal to twice the unpaid or underpaid wages.

          [(2)] D. An action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and [in] on behalf of [himself or themselves] 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 [before and in] on behalf of all employees similarly situated.

          E. The court in any action brought under [Paragraph (2)] Subsection D of this section shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow costs of the action and reasonable [attorneys'] 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."

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