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Your Rights Filing a Wage and Hour Claim - New Mexico

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Does New Mexico have state overtime laws that are different from federal law?

Like federal law, New Mexico law requires that any individual working more than 40 hours in any given workweek must be paid one and one-half times the regular hourly rate of pay for those extra hours. Anyone who is excluded from New Mexico's minimum wage requirements (see #2 below for the entire list) is also excluded from the overtime requirements.

The following employees covered under federal law for overtime are not covered under New Mexico law:

  • Foremen, superintendents, and supervisors.
  • Employees working for the federal government.
  • Employees of charitable, religious, or nonprofit organizations living in group homes operated by those organizations for mentally retarded or emotionally or developmentally disabled persons.
  • Salespersons or employees working on a piece-rate or commission basis or on a flat-rate schedule.
  • Students in primary or secondary schools working after school hours or during vacation.
  • Registered apprentices.
  • Employees under the age of 19 who are not students in primary, secondary, vocational, or training schools.
  • Employees under the age of 19 who are not graduates of a secondary school.
  • Employees working for an ambulance service.
  • G.I. Bill trainees under training.

The following individuals not covered under federal law for overtime are covered under New Mexico law:

  • Employees covered under the federal Motor Carriers Act (e.g. individuals engaged involved in transportation of goods or people by car or truck).
  • Railroad employees.
  • Air transportation employees.
  • Outside buyers of agricultural goods.
  • Seamen.
  • Announcers, news editors, or chief engineers of radio and television stations in certain small towns and cities.
  • Salespersons and mechanics involved in selling or servicing automobiles, trucks, and farm implements.
  • Salespersons of trailers, boats, and aircraft.
  • Local delivery persons.
  • Livestock auction employees.
  • Small country grain elevator employees.
  • Employees involved in the transportation of fruits and vegetables.
  • Taxicab drivers.
  • Firefighters and law enforcement personnel (federal law covers such individuals if the agency employing them employs more than five such individuals).
  • Employees of movie theaters.
  • Small-scale forestry or timber employees.
  • Employees of recreational establishments in national parks.

Does New Mexico have a minimum wage that is different from federal law?

New Mexico's minimum wage is $7.50 per hour. New Mexico's minimum wage is higher than the federal minimum wage of $7.25 per hour.

Employers need only pay a lower rate of 2.13 per hour to tipped employees who customarily and regularly receive more than $30.00 per month in tips.

An employer who supplies food, utilities, supplies, or housing to an employee engaged in agriculture is allowed to deduct the reasonable cost of those items from the wages of the employee, even if that brings the employee's wages under the minimum wage.

The following individuals are not considered "employees" under New Mexico's Minimum Wage Act, and therefore are not covered by the minimum wage (or overtime) requirements:

  • *Employees working in domestic service in or about a private home.
  • *Employees working in an executive, administrative, or professional capacity.
  • Foremen, superintendents, and supervisors.
  • Employees working for the federal government.
  • *Volunteers working for educational, charitable, religious, or nonprofit organizations, as well as individuals working for such organizations as part of a rehabilitation program.
  • Employees of charitable, religious, or nonprofit organizations living in group homes operated by those organizations for mentally retarded or emotionally or developmentally disabled persons.
  • Salespersons or employees working on a piece-rate or commission basis or on a flat-rate schedule.
  • Students in primary or secondary schools working after school hours or during vacation.
  • Registered apprentices.
  • Employees under the age of 19 who are not students in primary, secondary, vocational, or training schools.
  • Employees under the age of 19 who are not graduates of a secondary school.
  • Employees working for an ambulance service.
  • G.I. Bill trainees under training.
  • *Seasonal employees whose employer has obtained a valid certificate from the state's labor commissioner.
  • *Agricultural employees who meet any one of the following criteria:
    • The employer did not, during any calendar quarter of the last year, use more than 500 man-days of agricultural labor.
    • The employee is a member of the employer's immediate family.
    • The employee is a hand-harvest laborer paid on a piece-rate basis in an operation where that has customarily been the case; the employee commutes daily from his permanent residence to the farm; and the employee has been employed in agriculture less than thirteen weeks during the preceding calendar year.
    • The employee is under 17 years of age, is paid on a piece-rate basis in an operation where that has customarily been the case, is employed on the same farm as his parent or guardian, and is paid at the same piece-rate as other employees 17 and older on the farm.
    • The employee is mainly involved in the range production of livestock.

Those with an asterisk (*) are not exempt under federal law. That means that those individuals are covered by the federal minimum wage but not by the state minimum wage. Any employee not listed above who is exempt under federal law is covered under New Mexico's minimum wage requirement. (Note, however, that computer professionals, who are exempt under federal law, may also be exempt under New Mexico's professional exemption).

Does New Mexico have meal and rest break requirements, unlike federal law?

No, there is nothing under New Mexico state law that requires an employer to give meal or rest breaks.

Does New Mexico have other labor standards laws that are different from federal law?

Under state law in New Mexico, employers may not make any deductions from an employee's salary except those that are required by law (e.g. taxes, court orders), and those which the employee has agreed to, in writing, at the time of employment.

How do I file a wage/hour or labor standards claim in New Mexico?

If you cannot afford a lawyer, you can file a wage claim with the New Mexico Department of Labor's Labor and Industrial Division; however, you must attempt to resolve the situation by asking your employer for the wages owed to you. You file a claim by filling out a Wage Claim Form. The form and more information about filing a claim can be found at http://www.dws.state.nm.us/dws-wagecl.html. The Division can hold a hearing regarding your claim or, if necessary, bring a lawsuit on your behalf. If your employer has failed to pay you the minimum wage or your overtime pay, and the Division brings your case to court, the court may award you twice what your employer owes you.

What are my time deadlines?

Do not delay in contacting the New Mexico Department of Labor's Labor and Industrial Division to file a claim if you cannot afford an attorney. There are strict time limits in which charges of wage-and-hour violations must be filed. In order for that agency to act on your behalf, you must file with the Division as soon as possible. There is no deadline to file a wage claim with the Labor and Industrial Division, but you should not wait once you have a valid claim. Doing so may prevent the Division from taking action on your behalf in state court (see #7 for statutes of limitation on court actions).

How can I or my attorney pursue a claim in court in New Mexico?

If you are able to afford an attorney, the appropriate way for you to pursue a wage claim is to file it in court; you can file either with a Magistrate or in Metropolitan Court. If your claim is based on a failure to pay minimum wage or overtime, a court can order that your employer pay you double what is owed to you, as well as costs and attorneys' fees. If it is another kind of wage-and-hour claim, it is less clear what the court can award you beyond what you are owed; you should consult with your attorney about this issue. The statute of limitations for overtime claims is one year. There is no specific statute of limitations for other wage-and-hour claims, implying that the general statute of limitations of four years may apply. However, this is not certain and you should discuss this with your lawyer.

State Labor Agency

The following is the contact information of the regional offices of the Wage and Hour Bureau of the New Mexico Department of Labor's Labor and Industry Division:

Albuquerque Office
625 Silver St. SW Suite 410.
Albuquerque, NM 87102
Phone: (505) 841-4400
Fax: (505) 841-4422

Las Cruces Office
226 South Alameda
Las Cruces, NM 88006
Phone: (575) 524-6195
Fax: (505) 524-6194

Santa Fe Office
1596 Pacheco St.
Santa Fe, NM 87502
Phone: (505) 827-6817
Fax: (505) 827-9676

You can visit the state Department of Labor's website for more information: http://www.dws.state.nm.us/.