SENATE BILL 109
53rd legislature - STATE OF NEW MEXICO - first session, 2017
INTRODUCED BY
Joseph Cervantes
AN ACT
RELATING TO LABOR CONDITIONS; MAKING CHAPTER 50, ARTICLE 4 NMSA 1978 GENDER-NEUTRAL; MAKING RELATED STYLE AMENDMENTS TO THE NMSA 1978.
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) Whenever] As used in [this act] Sections 50-4-1 through 50-4-12 NMSA 1978:
A. "department" means the workforce solutions department;
B. "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; and
[(b)] C. "wages" [shall mean] means all amounts at which the labor or service rendered is recompensed, 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 50-4-3 NMSA 1978 (being Laws 1937, Chapter 109, Section 3) is amended to read:
"50-4-3. JOINT ADVENTURERS.--None of the provisions of [this act] Sections 50-4-1 through 50-4-12 NMSA 1978 shall apply to cases where an agreement is entered into between the employer and the employee at the time of hiring [providing] that provides that the employee, as part of [his] the employee's wages or compensation, shall have an interest in the success of the particular work or enterprise in connection with which the employee is hired. In all such cases, the employer shall be subject to the provisions of [this act] Sections 50-4-1 through 50-4-12 NMSA 1978 only to the extent of that portion of the wages or compensation to be paid in cash, and as to the balance, the employer and employee shall stand as joint adventurers."
SECTION 3. Section 50-4-4 NMSA 1978 (being Laws 1937, Chapter 109, Section 4, as amended) is amended to read:
"50-4-4. [DISCHARGES] DISCHARGED EMPLOYEES.--
A. Whenever an employer discharges an employee, the unpaid wages or compensation of [such] the employee, if a fixed and definite amount and not based on a task, piece or commission basis or other method of calculation, shall upon demand become due immediately, and the employer shall pay such wages to the employee within five days of [such] discharge.
B. In all other cases of discharged employees, the settlement and payment of wages or compensation shall be made within ten days of [such] discharge.
C. In case of failure to pay wages or compensation due an employee within the time [hereinbefore] fixed in Subsections A and B of this section, the wages and compensation of the employee shall continue from the date of discharge until paid at the same rate the employee received at the time of discharge and may be recovered in a civil action brought by the employee [provided that]. The employee shall not be entitled to recover any wages or compensation for any period subsequent to the date of discharge unless [he] the employee pleads in [his] the employee's complaint and establishes that [he] the employee made demand within a reasonable time upon [his] the employee's employer at the place designated for payment and payment was refused [provided further that]. The employee shall not be entitled to recover any wages or compensation for any period subsequent to the sixtieth day after the date of discharge."
SECTION 4. Section 50-4-5 NMSA 1978 (being Laws 1937, Chapter 109, Section 5) is amended to read:
"50-4-5. EMPLOYEES QUITTING EMPLOYMENT.--Whenever an employee, not having a written contract for a definite period, quits or resigns [his] employment, the wages or compensation shall become due and be payable at the next succeeding payday. Nothing in this section shall prohibit or restrict the right of the employer to make immediate payment at the time [of quitting] the employee quits or resigns."
SECTION 5. Section 50-4-7 NMSA 1978 (being Laws 1937, Chapter 109, Section 7) is amended to read:
"50-4-7. UNCONDITIONAL PAYMENT OF WAGES CONCEDED TO BE DUE.--In case of dispute over wages, the employer shall give written notice to the employee of the amount of wages [which he] that the employer concedes to be due and shall pay such amount, without condition, within the times fixed by [this act] Sections 50-4-4 and 50-4-5 NMSA 1978. The acceptance by the employee of any payment so made shall not constitute a release as to the balance of [his] the employee's claim. The provisions of Section [4] 50-4-4 NMSA 1978 shall not be applicable in cases arising under this section, except as herein provided."
SECTION 6. 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] VIOLATIONS--RESPONSIBILITY AND AUTHORITY TO INVESTIGATE.--
A. [It is the duty of the labor commissioner to] The 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 of any claim and [he] 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] the department has determined that the employee's claim is just and valid.
B. 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] department.
C. 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 7. Section 50-4-9 NMSA 1978 (being Laws 1937, Chapter 109, Section 9) is amended to read:
"50-4-9. RECORDS, SUBPOENAS, ETC.--
[(a)] A. 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.
[(b)] B. The [labor commissioner and his authorized representatives] department shall have the right at all reasonable times to inspect such records 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 authorized representatives] department in the performance of [their] its duties shall be deemed a violation of [this act] Sections 50-4-1 through 50-4-12 NMSA 1978 and punished as such.
[(d)] D. The [labor commissioner and his authorized representatives] department 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)] E. 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] 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 8. Section 50-4-11 NMSA 1978 (being Laws 1937, Chapter 109, Section 12, as amended) is amended to read:
"50-4-11. WAGE CLAIMS--LIENS--ASSIGNMENT.--
A. The [labor commissioner shall have power and authority to] department may:
(1) take assignments of wage claims of employees against employers [and shall also have power to];
(2) take assignments of liens upon real or personal property securing the claims of employees and laborers [and shall have power and authority to]; and
(3) prosecute actions for the collection of [such] assigned claims and for the foreclosure of assigned liens [of such persons securing such claims of persons who, in the judgment of the labor commissioner, are entitled to the services of the labor commissioner and who, in his judgment, have claims or liens or both which are valid and enforcible in the courts].
B. In cases where the [commissioner] department has taken assignments of labor claims [which] that are lienable under the lien laws of [the state of] New Mexico, [he shall have power to] the department may join any number of claimants in one statement of claim or lien and, in case of suit, [to] may join any number of claimants in one cause of action."
SECTION 9. Section 50-4-12 NMSA 1978 (being Laws 1937, Chapter 109, Section 13, as amended) is amended to read:
"50-4-12. WAGE CLAIM ACTIONS--COSTS--JURISDICTION--REPRESENTATION BY DISTRICT ATTORNEY--APPEALS.--
A. In all actions brought by the [director of the labor and industrial division of the labor department as assignee] department under the provisions of Section 50-4-11 NMSA 1978, the [director] department shall be entitled to free process and shall not be obligated or required to give any bond or other security for costs.
B. Any sheriff, constable or other officer requested by the [director] department to serve any summons, writ, complaint or order shall do so without requiring the [director] department to pay any fees or furnish any security or bond.
C. Where all claims joined together do not exceed in the aggregate the jurisdictional limit of the magistrate or metropolitan court, the [director] department may institute an action against the employer in any magistrate or metropolitan court having jurisdiction without referring the claim to the district attorney. [In the event that] If during the course of the proceedings representation by an attorney at law becomes necessary or [in the director's judgment] advisable, the [director] department shall [so] notify the district attorney, and it shall then be the duty of the district attorney [or the district attorney's assistant] to appear for the [director] department in the cause.
D. [In the event] If the cause is appealed by the [director] department, no bond or other security shall be required or fees charged the [director] department for court costs or sheriff's fees in serving process."
SECTION 10. Section 50-4-13 NMSA 1978 (being Laws 1933, Chapter 149, Section 3) is amended to read:
"50-4-13. HOURS OF EMPLOYMENT--EATING ESTABLISHMENTS.--
A. Any person [or persons], firm, association or corporation owning any hotel, restaurant, cafe or eating house within this state shall not be allowed to cause any [male] employee therein to labor more than ten hours in any twenty-four hours of any one day nor more than seventy hours in any one week of seven days.
B. The hours of labor may be [so arraigned so as] arranged to permit the employment of any [male] employee so engaged at any time so that [they] the employee shall not work more than ten hours in any twenty-four hours of any one day nor more than seventy hours in any one week of seven days."
SECTION 11. Section 50-4-15 NMSA 1978 (being Laws 1933, Chapter 149, Section 5) is amended to read:
"50-4-15. UNIFORM TIME FOR BEGINNING WORK--NOTICE OF CHANGE.--The beginning of the day of labor shall be uniform as provided for by the rules or regulations governing [to] the place of employment; provided [however] that [in case] if any change in the time of the beginning of the day of labor is desired, it [shall be] is the duty of the management of [such an] the establishment to notify [such] the employee of [such] the change on the day prior to [such] the change contemplated. [said] Notice shall be served during the working day."
SECTION 12. Section 50-4-16 NMSA 1978 (being Laws 1933, Chapter 149, Section 6) is amended to read:
"50-4-16. TIME RECORDS--INSPECTION.--
A. Every employer to whom [this act applys] Sections 50-4-13 through 50-4-18 NMSA 1978 apply shall be required to keep a time record showing the number of hours each [male] employee worked each day. [Such]
B. The time record shall be open at all reasonable hours to the inspection of the [State labor commissioner, his agents or agent, record of which is required to be kept as herein provided for] workforce solutions department."
SECTION 13. Section 50-4-17 NMSA 1978 (being Laws 1933, Chapter 149, Section 7) is amended to read:
"50-4-17. FAILURE TO KEEP RECORDS OR COMPLY--PENALTY.--[The failure of] Any employer who fails to keep [such a] the time record required by Section 50-4-16 NMSA 1978 or who makes any false entry therein or [the failure] who fails to comply with the provisions of [this Act] Sections 50-4-13 through 50-4-18 NMSA 1978 shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than seventy-five dollars ($75.00) or more than three hundred dollars ($300) for each offense."
SECTION 14. Section 50-4-23 NMSA 1978 (being Laws 1967, Chapter 242, Section 1, as amended) is amended to read:
"50-4-23. PERSONS WITH A DISABILITY--MINIMUM WAGE-- [DIRECTOR] DEPARTMENT POWERS AND DUTIES.--
A. The [director of the labor and industrial division of the labor] workforce solutions department, to the extent necessary in order to prevent curtailment of opportunities for employment, shall, by regulation, provide for the employment under special certificates of individuals, including individuals employed in agriculture, whose earning or productive capacity is impaired by physical or mental disability or injury or any other disability, at wages that are lower than the minimum wage applicable under Section 50-4-22 NMSA 1978, but not less than fifty percent of such wage.
B. The [director] workforce solutions department, pursuant to regulations and upon certification of any state agency administering or supervising the administration of vocational rehabilitation services, may issue a special [certificates] certificate that [allow] allows the holder thereof to work at wages that are less than those required by Subsection A of this section and that are related to the [workers'] worker's productivity, for the employment of:
(1) workers with a disability who are engaged in work that is incidental to training or evaluation programs; and
(2) persons with multiple disabilities and other persons whose earning capacity is so severely impaired that they are unable to engage in competitive employment.
C. The [director] workforce solutions department may by regulation [or order] provide for the employment of persons with a disability in work activities centers under special certificates at wages that are less than the minimums applicable under Section 50-4-22 NMSA 1978, or less than that prescribed in Subsection A of this section, and that constitute equitable compensation for such persons. As used in this subsection, "work activities centers" means centers planned and designed exclusively to provide therapeutic activities for persons with a disability whose physical or mental disability is so severe as to make their productive capacity inconsequential.
D. The state agency administering or supervising the administration of vocational rehabilitation may issue a temporary certificate for a period not to exceed ninety days pursuant to Subsections A, B and C of this section and may request an extension of the certification by the [director] workforce solutions department when it is determined that the severity of disability of an individual or circumstances warrants an extension of the certification."
SECTION 15. Section 50-4-25 NMSA 1978 (being Laws 1955, Chapter 200, Section 4, as amended) is amended to read:
"50-4-25. POSTING OF SUMMARY OF THE ACT.--Every employer subject to the Minimum Wage Act shall keep a summary of it, furnished by the [labor commissioner] workforce solutions department without charge, posted in a conspicuous place on or about the premises wherein any person subject to the Minimum Wage Act is employed, and the summary shall clearly and conspicuously set forth the current minimum wage."
SECTION 16. 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] department 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 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 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 Subsection D of this section 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 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."
SECTION 17. Section 50-4-27 NMSA 1978 (being Laws 1967, Chapter 188, Section 5) is amended to read:
"50-4-27. AUTHORITY OF [LABOR COMMISSIONER] WORKFORCE SOLUTIONS DEPARTMENT TO PROMULGATE RULES--HEARING ON RULES--NOTICE--PUBLICATION.--The [state labor commissioner] workforce solutions department shall have the authority to promulgate and issue rules and regulations necessary to administer and accomplish the purposes of the Minimum Wage Act. Such rules and regulations shall be adopted after notice and public hearing. A copy of the notice of hearing together with a copy of the proposed regulations shall be filed with the librarian of the supreme court library at least twenty days prior to the hearing. In addition, a copy of the notice of hearing shall be sent to all known interested persons. Any interested person shall have the right to appear and present evidence."
SECTION 18. Section 50-4-30 NMSA 1978 (being Laws 1971, Chapter 169, Section 1) is amended to read:
"50-4-30. DAILY MAXIMUM HOURS OF EMPLOYMENT--EXCEPTIONS.--
A. No employee other than a [fireman] firefighter, law enforcement officer or farm or ranch hand whose duties require [them to work] working longer hours or [employees] employee primarily in a standby position shall be required to work for any employer within the state more than sixteen hours in any one day of twenty-four hours except in emergency situations.
B. Any person violating any of the provisions of this [act] section shall be guilty of a misdemeanor."
- 16 -