HB0115

HOUSE BILL 115

51st legislature - STATE OF NEW MEXICO - second session, 2014

INTRODUCED BY

Miguel P. Garcia

AN ACT

RELATING TO LABOR; PROTECTING WORKER RIGHTS TO WAGES EARNED; REVISING INVESTIGATION PROCEDURES; REQUIRING TRANSLATION OF CERTAIN DOCUMENTS; EXTENDING RECORD RETENTION; PROVIDING PROCEDURES FOR CLASS ACTION LAWSUITS; PROVIDING FOR A WAGE THEFT STUDY; ESTABLISHING THE WAGE AND HOUR ENFORCEMENT FUND; PROVIDING PENALTIES; MAKING AN APPROPRIATION.

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

SECTION 1. Section 50-4-1 NMSA 1978 (being Laws 1937, Chapter 109, Section 1) is amended to read:

"50-4-1. DEFINITIONS.--

[(a)] A. Whenever used in [this act] Sections 50-4-1 through 50-4-12 NMSA 1978, "employer" includes every person, firm, partnership, association, corporation, receiver or other officer of the court of this state and any agent or officer of any of the above-mentioned classes employing any person in this state, except employers of domestic labor in private homes and employers of livestock and agricultural labor. In determining whether a person is an employer pursuant to Chapter 50, Article 4 NMSA 1978, the workforce solutions department and courts shall consider all relevant evidence.

[(b)] B. "Wages" [shall mean] means all amounts at which the labor or service rendered is recompensed, including cash payment, whether the amount is fixed or ascertained on a time, task, piece or commission basis or other method of calculating such amount."

SECTION 2. Section 50-4-8 NMSA 1978 (being Laws 1937, Chapter 109, Section 8, as amended) is amended to read:

"50-4-8. INVESTIGATIONS--DUTIES OF THE [LABOR COMMISSIONER] WORKFORCE SOLUTIONS DEPARTMENT AND DISTRICT ATTORNEYS.--

A. [It is the duty of the labor commissioner to] The workforce solutions department shall investigate any violations of Sections 50-4-1 through 50-4-12 NMSA 1978 and [to] institute or cause to be instituted actions for the enforcement of the same. The [labor commissioner] department may hold hearings to [satisfy himself as to] determine the justice and validity of any claim, and [he] the department 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] department, the claim is just and valid.

B. The department shall provide all written communications, notices and decisions related to investigations pursuant to this section in both English and Spanish and in other translations, as appropriate, and shall comply with federal laws requiring the translation of vital documents.

[B. It is the duty of all] C. District attorneys [to] shall prosecute all cases [both civilly and criminally, which] that are referred to them by the [labor commissioner] department.

[C.] D. 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 is not intended to create any right to collect unemployment compensation nor to mandate any wage rate."

SECTION 3. Section 50-4-9 NMSA 1978 (being Laws 1937, Chapter 109, Section 9) is amended to read:

"50-4-9. RECORDS, SUBPOENAS [ETC.] AND TESTIMONY.--

[(a)] A. Every employer shall keep a true and accurate record of hours worked and wages paid to each [employee] of the employer's employees. The employer shall keep such records on file for at least [one year] four years after the entry of the record.

[(b) The labor commissioner and his] B. Authorized representatives of the workforce solutions department shall have the right at all reasonable times to inspect [such] records made pursuant to this section for the purpose of ascertaining whether the provisions of [this act] Sections 50-4-1 through 50-4-12 NMSA 1978 are complied with.

[(c)] C. Any interference with the [labor commissioner or his] department's authorized representatives in the performance of their duties shall be deemed a violation of this [act and punished as such] section.

[(d)] D. The [labor commissioner and his] department'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 department.

[(e) In case of failure of] E. If any person fails to comply with any subpoena lawfully issued, or [upon the refusal of] if any witness [or witnesses] refuses to testify [upon] on any matter on which [he or they] the witness may be lawfully interrogated, the [labor commissioner] department 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."

SECTION 4. Section 50-4-10 NMSA 1978 (being Laws 1937, Chapter 109, Section 11, as amended) is amended to read:

"50-4-10. [FORFEITURE AND] PENALTIES.--

A. An employer who fails to respond within thirty days after receipt of notice from the workforce solutions department of an investigation of a violation of Sections

50-4-1 through 50-4-12 NMSA 1978, or who fails to cooperate during the course of the investigation, shall be fined by the department in the amount of one hundred dollars ($100) per employee affected by the investigation for every day that the employer fails to respond to or cooperate with the investigation.

B. Notwithstanding the provisions of Subsection A of this section, an employer who violates or fails to comply with any provision of Sections 50-4-1 through 50-4-12 NMSA 1978 is guilty of a misdemeanor and upon conviction for a first offense shall be sentenced pursuant to Section 31-19-1 NMSA 1978.

[B.] C. A person who is convicted of a second or subsequent offense of violating or failing to comply with any provision of Sections 50-4-1 through 50-4-12 NMSA 1978 is guilty of a misdemeanor and shall be sentenced [pursuant to Section 31-19-1 NMSA 1978] to imprisonment in the county jail for a definite term of less than one year and shall be fined no less than two hundred fifty dollars ($250) and not more than one thousand dollars ($1,000) for each offense for which the person is convicted, which fine shall not be suspended, deferred or taken under advisement.

[C.] D. Each occurrence of a violation for which a person is convicted is a separate offense. Multiple violations arising from transactions with the same person or multiple violations arising from transactions with different people shall be considered separate occurrences.

[D.] E. In case the employer is a corporation, the fine provided in this section shall be assessed against the corporation as a penalty."

SECTION 5. 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. In determining whether a person is an employer pursuant to the Minimum Wage Act, the workforce solutions department and courts shall consider all relevant evidence; 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 6. 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. An employer who violates any of the provisions of the Minimum Wage Act is guilty of a misdemeanor and upon conviction shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.

B. The director of the labor relations division of the workforce solutions department shall enforce and prosecute violations of the Minimum Wage Act. The director may institute in the name of the state 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 a principal office or place of business for the purpose of prosecuting violations. The district attorney for the district [wherein any] in which a violation [hereof] occurs shall aid and assist the director in the prosecution.

C. In addition to penalties provided pursuant to this section, an employer who violates any provision of Section 50-4-22 or 50-4-26.1 NMSA 1978 shall be liable to the employees affected in the amount of their unpaid or underpaid minimum wages plus interest, and in an additional amount equal to twice the unpaid or underpaid wages.

D. An action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and on behalf of 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 on behalf of all employees similarly situated.

E. The court in any action brought [under] pursuant to Subsection D of this section or pursuant to Section 50-4-26.1 NMSA 1978 shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow costs of the action and reasonable 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.

G. Civil actions and appeals of civil actions brought to collect unpaid or underpaid wages, interest and any other amounts due [under] pursuant to this section shall be heard by the court at the earliest possible date and shall be entitled to a preference over all other civil actions, to the same extent as civil actions to collect contributions pursuant to Section 51-1-36 NMSA 1978, on the calendar of the court.

H. A class action brought pursuant to this section shall be governed by Rule 1-023 of the Rules of Civil Procedure for the District Courts."

SECTION 7. A new section of Chapter 50, Article 4 NMSA 1978 is enacted to read:

"[NEW MATERIAL] WAGE AND HOUR ENFORCEMENT FUND--CREATED.--

A. The "wage and hour enforcement fund" is created as a nonreverting fund in the state treasury and shall be administered by the workforce solutions department. The fund consists of appropriations, gifts, grants, donations, income from investment of the fund and any other money that is credited to the fund.

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 deposited in the wage and hour enforcement fund.

C. Money in the fund is appropriated to the labor relations division of the workforce solutions department to fund wage and hour enforcement activities by the division. Money shall be disbursed from the fund only on warrant of the secretary of finance and administration pursuant to vouchers signed by the secretary of workforce solutions or the secretary's authorized representative. Money in the fund shall not revert to any other fund at the end of a fiscal year."

SECTION 8. APPROPRIATION.--Sixty-five thousand dollars ($65,000) is appropriated from the general fund to the board of regents of New Mexico state university for expenditure in fiscal years 2015 and 2016 to complete a comprehensive study of wage theft in New Mexico. Any unexpended or unencumbered balance remaining at the end of fiscal year 2016 shall revert to the general fund.

SECTION 9. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2014.

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