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AN ACT

RELATING TO EMPLOYMENT LAW; AMENDING THE MINIMUM WAGE ACT;

EXEMPTING EMPLOYEES OF THE STATE OR A POLITICAL SUBDIVISION

OF THE STATE FROM CERTAIN PROVISIONS OF THE MINIMUM WAGE ACT;

RECONCILING MULTIPLE AMENDMENTS TO THE SAME SECTION OF LAW IN

LAWS 2007; DECLARING AN EMERGENCY.

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 by Laws 2007, Chapter 46,

Section 45 and by Laws 2007, Chapter 47, Section 1) 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

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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;

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(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;

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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;

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

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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."

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Section 2. EMERGENCY.--It is necessary for the public

peace, health and safety that this act take effect

immediately.