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AN ACT

RELATING TO PAYMENT OF WAGES; INCREASING THE STATE MINIMUM

WAGE IN TWO PHASES; MODIFYING EXEMPTIONS; PREEMPTING LOCAL

INCREASES FOR TWO YEARS; PRESERVING LOCAL INCREASE ORDINANCES

IN EFFECT ON JANUARY 1, 2007.

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

Section 1. 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; 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;

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(3) an individual employed by the United

States;

(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

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training;

(11) seasonal employees of an employer

obtaining and holding a valid certificate issued annually by

the director of the labor and industrial division of the

labor 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;

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:

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(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;

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

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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 mentally retarded or emotionally or

developmentally disabled persons."

Section 2. Section 50-4-22 NMSA 1978 (being Laws 1955,

Chapter 200, Section 3, as amended by Laws 2005, Chapter 302,

Section 1 and by Laws 2005, Chapter 306, Section 1) 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

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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."

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Section 3. A new section of the Minimum Wage Act is

enacted to read:

"TEMPORARY STATE PREEMPTION--SAVING CLAUSE.--

A. Except as provided in Subsection B of this

section, cities, counties, home rule municipalities and other

political subdivisions of the state shall not adopt or

continue in effect any law or ordinance that would mandate a

minimum wage rate higher than that set forth in the Minimum

Wage Act. The provisions of this subsection expire on

January 1, 2010.

B. A local law or ordinance, whether advisory or

self-executing, in effect on January 1, 2007 that provides

for a higher minimum wage rate than that set forth in the

Minimum Wage Act shall continue in full force and effect

until repealed."

Section 4. EFFECTIVE DATE.--The effective date of the

provisions of this act is January 1, 2008.