HOUSE BILL 493
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Al Park
AN ACT
RELATING TO EMPLOYMENT LAW; INCLUDING STATE AND LOCAL SUBDIVISIONS IN THE MINIMUM WAGE ACT; PROVIDING FOR COMPENSATORY TIME PURSUANT TO FEDERAL LAW; ALLOWING THE FILING OF COMPLAINTS WITH THE LABOR RELATIONS DIRECTOR OF THE WORKFORCE SOLUTIONS DEPARTMENT; REQUIRING EMPLOYERS TO COOPERATE IN INVESTIGATIONS; PROVIDING FOR FINES FOR FAILURE TO RESPOND TO INVESTIGATIONS; TOLLING THE STATUTE OF LIMITATIONS DURING STATE INVESTIGATIONS OF WAGE AND HOUR VIOLATIONS; REQUIRING MAINTENANCE OF WAGE RECORDS; PROVIDING A CLASS ACTION DEVICE; DESIGNATING ANY REMAINING CLASS ACTION PROCEEDS TO THE STATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 50-4-8 NMSA 1978 (being Laws 1937, Chapter 109, Section 8, as amended) is amended to read:
"50-4-8. DUTIES OF THE [LABOR COMMISSIONER] DIRECTOR--HEARINGS--COMPLAINTS--FINE.--
A. [It is the duty of the labor commissioner to] The director of the labor relations division of the workforce solutions department shall investigate any violations of [Sections 50-4-1 through 50-4-12] Chapter 50, Article 4 NMSA 1978 and [to] institute or cause to be instituted actions for the enforcement of the same. The [labor commissioner] director may hold hearings to [satisfy himself as to] determine the justice of any claim. [and he] The director shall cooperate with any employee in the enforcement of any claim against [his] the employee's employer whenever, in the opinion of the [labor commissioner] director, the claim is just and valid.
B. An employer who fails to respond adequately and in good faith within thirty days after receipt of notice of an investigation by the director of the labor relations division or who fails to cooperate adequately and in good faith during the course of the investigation shall be fined one hundred dollars ($100) for every day that the employer does not comply with this subsection. The fine shall be levied at one hundred dollars ($100) a day for each employee affected by the investigation.
C. Any person may file a complaint with the director alleging a violation of Chapter 50, Article 4 NMSA 1978 or any rule implementing its provisions. The complaint shall be promptly investigated and resolved.
[B.] D. It is the duty of all district attorneys to prosecute all cases, both civilly and criminally, [which] that are referred to them by the [labor commissioner] director.
[C.] E. It shall not be a defense to any action brought pursuant to this section that the plaintiff or complainant is an undocumented worker. It is not intended by this section to create any right to collect unemployment compensation nor to mandate any wage rate."
Section 2. Section 50-4-9 NMSA 1978 (being Laws 1937, Chapter 109, Section 9) is amended to read:
"50-4-9. [RECORDS, SUBPOENAS, ETC] EMPLOYER DUTIES--INVESTIGATIONS--PENALTY--TOLLING OF STATUTE.--
A. An employer shall provide an employee at the time of hire the employer's name, address and telephone number in writing.
[(a)] B. Every employer shall keep a true and accurate record of hours worked and wages paid to each employee. The employer shall keep such records on file for at least [one year after the entry of the record] four years. Failure to do so shall raise a rebuttable presumption that the employer did not pay the required minimum wages or otherwise violated the provisions of Chapter 50, Article 4 NMSA 1978.
[(b)] C. The [labor commissioner and his] director of the labor relations division of the workforce solutions department and the director's authorized representatives shall have the right at all reasonable times to inspect [such] an employer's records for the purpose of ascertaining whether the provisions of [this act] Chapter 50, Article 9 NMSA 1978 are complied with.
[(c)] D. Any interference with the [labor commissioner or his] director or the director's authorized representatives in the performance of their duties shall be deemed a violation [of this act] and punished [as such] pursuant to the provisions of Section 50-4-10 NMSA 1978.
[(d)] E. The [labor commissioner and his] director and the director's authorized representatives shall have the power to administer oaths and examine witnesses under oath, issue subpoenas, compel the attendance of witnesses and the production of payroll records and take depositions and affidavits in any proceedings before [said labor commissioner] the director.
[(e)] F. In case of failure of any person to comply with any subpoena lawfully issued or upon the refusal of any witness [or witnesses] to testify [upon] on any matter on which [he or they] the witness may be lawfully interrogated, the [labor commissioner] director may apply to the district court in the proper county or to the judge thereof for a writ of attachment to compel [said] the witness to respond to [said] the subpoena or to testify, as the case may be.
G. The statute of limitations for civil actions brought pursuant to Chapter 50, Article 4 NMSA 1978 shall be tolled during a labor relations division investigation of an employer, but such an investigation shall not be a prerequisite to a person bringing a civil action nor shall it operate to bar a civil action pursuant to this article."
Section 3. Section 50-4-21 NMSA 1978 (being Laws 1955, Chapter 200, Section 2, as amended) is amended to read:
"50-4-21. DEFINITIONS.--As used in the Minimum Wage Act:
A. "employ" includes suffer or permit to work;
B. "employer" includes any individual, partnership, association, corporation, business trust, legal representative or any organized group of persons employing one or more employees at any one time, acting directly or indirectly in the interest of an employer in relation to an employee, but shall not include the United States [the state or any political subdivision of the state; provided, however, that for the purposes of Subsection A of Section 50-4-22 NMSA 1978, "employer" includes the state or any political subdivision of the state]; and
C. "employee" includes an individual employed by an employer, but shall not include:
(1) an individual employed in domestic service in or about a private home;
(2) an individual employed in a bona fide executive, administrative or professional capacity and forepersons, superintendents and supervisors;
(3) an individual employed by the United States [the state or any political subdivision of the state; provided, however, that for the purposes of Subsection A of Section
50-4-22 NMSA 1978, "employee" includes an individual employed by the state or any political subdivision of the state];
(4) an individual engaged in the activities of an educational, charitable, religious or nonprofit organization where the employer-employee relationship does not, in fact, exist or where the services rendered to such organizations are on a voluntary basis. The employer-employee relationship shall not be deemed to exist with respect to an individual being served for purposes of rehabilitation by a charitable or nonprofit organization, notwithstanding the payment to the individual of a stipend based upon the value of the work performed by the individual;
(5) salespersons or employees compensated upon piecework, flat rate schedules or commission basis;
(6) students regularly enrolled in primary or secondary schools working after school hours or on vacation;
(7) registered apprentices and learners otherwise provided by law;
(8) persons eighteen years of age or under who are not students in a primary, secondary, vocational or training school;
(9) persons eighteen years of age or under who are not graduates of a secondary school;
(10) G.I. bill trainees while under training;
(11) seasonal employees of an employer obtaining and holding a valid certificate issued annually by the director of the labor relations division of the workforce solutions department. The certificate shall state the job designations and total number of employees to be exempted. In approving or disapproving an application for a certificate of exemption, the director shall consider the following:
(a) whether such employment shall be at an educational, charitable or religious youth camp or retreat;
(b) that such employment will be of a temporary nature;
(c) that the individual will be furnished room and board in connection with such employment, or if the camp or retreat is a day camp or retreat, the individual will be furnished board in connection with such employment;
(d) the purposes for which the camp or retreat is operated;
(e) the job classifications for the positions to be exempted; and
(f) any other factors that the director deems necessary to consider;
(12) any employee employed in agriculture:
(a) if the employee is employed by an employer who did not, during any calendar quarter during the preceding calendar year, use more than five hundred man-days of agricultural labor;
(b) if the employee is the parent, spouse, child or other member of the employer's immediate family; for the purpose of this subsection, the employer shall include the principal stockholder of a family corporation;
(c) if the employee: 1) is employed as a hand-harvest laborer and is paid on a piece-rate basis in an operation that has been, and is customarily and generally recognized as having been, paid on a piece-rate basis in the region of employment; 2) commutes daily from the employee's permanent residence to the farm on which the employee is so employed; and 3) has been employed in agriculture less than thirteen weeks during the preceding calendar year;
(d) if the employee, other than an employee described in Subparagraph (c) of this paragraph: 1) is sixteen years of age or under and is employed as a hand-harvest laborer, is paid on a piece-rate basis in an operation that has been, and is generally recognized as having been, paid on a piece-rate basis in the region of employment; 2) is employed on the same farm as the employee's parent or person standing in the place of the parent; and 3) is paid at the same piece-rate as employees over age sixteen are paid on the same farm; or
(e) if the employee is principally engaged in the range production of livestock or in milk production;
(13) an employee engaged in the handling, drying, packing, packaging, processing, freezing or canning of any agricultural or horticultural commodity in its unmanufactured state; or
(14) employees of charitable, religious or nonprofit organizations who reside on the premises of group homes operated by such charitable, religious or nonprofit
organizations for persons who have a mental, emotional or developmental disability."
Section 4. 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 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.
E. For employees of the state or any political subdivision of the state, compensatory time off may be granted in lieu of payment for overtime wages pursuant to Section 207 of the federal Fair Labor Standards Act of 1938 and regulations issued pursuant to that act."
Section 5. A new section of the Minimum Wage Act is enacted to read:
"[NEW MATERIAL] CLASS ACTION--PROCEEDS.--
A. A class action brought pursuant to Section 50-4-26 NMSA 1978 shall be governed by Rule 1-023 of the Rules of Civil Procedure for the District Courts.
B. Any proceeds remaining from a judgment entered for a class of employees that cannot be distributed due to the unavailability of a class member employee or employees shall be recovered on behalf of and distributed to the labor relations division of the workforce solutions department for the purpose of funding state wage and hour enforcement activities."
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