HOUSE BILL 23
56th legislature - STATE OF NEW MEXICO - first session, 2023
Miguel P. Garcia
RELATING TO EMPLOYMENT; REQUIRING BACKGROUND ARTISTS TO BE PAID WITHIN SEVEN DAYS; ENACTING THE BACKGROUND ARTIST ACT; PROVIDING PROTECTIONS FOR BACKGROUND ARTISTS DURING EMPLOYMENT; PROVIDING PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 50-4-2 NMSA 1978 (being Laws 1937, Chapter 109, Section 2, as amended) is amended to read:
"50-4-2. SEMIMONTHLY AND MONTHLY PAY DAYS.--
A. An employer in this state shall designate regular pay days, not more than sixteen days apart, as days fixed for the payment of wages to all employees paid in this state. The employer shall pay for services rendered from the first to the fifteenth days, inclusive, of any calendar month by the twenty-fifth day of the month during which services are rendered, and for all services rendered from the sixteenth to the last day of the month, inclusive, of any calendar month by the tenth day of the succeeding month. Where computation of earnings and of amounts due, preparation of payrolls and issuance of paychecks are at a central location outside New Mexico, the employer shall pay for services rendered from the first to the fifteenth days, inclusive, of any calendar month by the last of the month during which services are rendered, and for all services rendered from the sixteenth to the last day of the month, inclusive, of any calendar month by the fifteenth day of the succeeding month.
B. Except as provided by rules of the department of finance and administration for payment of salaries and wages to state employees, other than employees of institutions of higher education, promulgated pursuant to Section 10-7-2 NMSA 1978, an employer shall pay wages in full, less lawful deductions and less payroll deductions authorized by the employer and employee. Wages shall be paid in lawful money of the United States or in checks, payroll vouchers or drafts on banks, convertible into cash on demand at full face value or, with the voluntary authorization of the employer, employee and financial institution, by deposit to the account of the employee in any bank, savings and loan association, credit union or other financial institution authorized by the United States or one of the several states to receive deposits in the United States, without any reduction or deduction, except as may be specifically stated in a written contract of hiring entered into at the time of hiring. An employer shall provide an employee with a written receipt that identifies the employer and sets forth the employee's gross pay, the number of hours worked by the employee, the total wages and benefits earned by the employee and an itemized listing of all deductions withheld from the employee's gross pay. Nothing contained in Sections 50-4-1 through 50-4-12 NMSA 1978 shall in any way limit or prohibit the payment of wages or compensation at more frequent intervals than those set forth in this section. Where the labor or service to be rendered to an employer is recompensed on a task, piece or commission basis or other method of calculating the amount of wages to be paid, other than a definite and fixed amount in cash, the employer and the employee may agree in writing at the time of hiring that the wages shall be paid on a monthly basis, on or before the tenth day of the succeeding calendar month.
C. Notwithstanding the provisions of Subsection A of this section, an employer may pay professional, administrative or executive employees or employees employed in the capacity of outside salesman, as those terms are defined under the federal Fair Labor Standards Act, one time per month, excluding those employees whose wages are subject to provisions of collective bargaining agreements.
D. Notwithstanding the provisions of Subsection A of this section, an employer of a background artist, as that term is defined in the Background Artist Act, shall designate regular pay days, not more than sixteen days apart, as days fixed for the payment of wages to all background artists. The employer shall pay for services rendered from the first to the fifteenth days, inclusive, of any calendar month by the twenty-second day of the month during which services are rendered, and for all services rendered from the sixteenth to the last day of the month, inclusive, of any calendar month by the seventh day of the succeeding month."
SECTION 2. [NEW MATERIAL] SHORT TITLE.--Sections 2 through 6 of this act may be cited as the "Background Artist Act".
SECTION 3. [NEW MATERIAL] DEFINITIONS.--As used in the Background Artist Act:
A. "background artist" means:
(1) a person who is not a performing artist but is a person of atmospheric business whose work includes atmospheric noise, normal actions, gestures and facial expressions of that person's assignment;
(2) a person of atmospheric business whose work includes special abilities that are not stunts; or
(3) a person who is a substitute for another actor, whether photographed as a double or acting as a stand-in; and
B. "department" means the workforce solutions department.
SECTION 4. [NEW MATERIAL] BACKGROUND ARTIST'S BILL OF RIGHTS.--
A. An employer of a background artist shall:
(1) provide a safe and healthful workplace, including access to shade, water, heating and cooling;
(2) provide separate and private changing rooms for adults and children;
(3) maintain a workplace that is free from sexual harassment in accordance with the Human Rights Act; and
(4) gather information upon employment on any physical or mental disability or serious medical condition of a background artist and provide accommodation appropriate for such disability or condition, unless such accommodation is unreasonable or an undue hardship in accordance with the Human Rights Act.
B. An employer of a background artist shall not retaliate against a background artist for assertion of rights provided in the Background Artist Act or any other applicable law. Retaliation includes to discharge or to demote a background artist, to discriminate in matters of compensation, terms, conditions or privileges of employment or an employer's refusal to hire or promote a background artist.
SECTION 5. [NEW MATERIAL] PAYMENT FOR ALL WORK REQUIRED--RECORDS--ENFORCEMENT.--
A. An employer shall pay a background artist for all hours worked or otherwise due and owed to the background artist. Failure to pay for each day and all hours worked is a violation of the Background Artist Act. A person who fails to pay a background artist for work performed or time due is liable for full payment of the wages not paid and civil damages equal to twice the value of the unpaid wages, court costs and attorney fees.
B. An employer of a background artist shall maintain true and accurate records of the background artists employed and of the hours worked and wages paid to the background artists, including itemization of any compensation owed for travel, required medical tests or other expenses, for at least one year after the entry of the record.
C. The department shall investigate complaints and enforce the provisions of the Background Artist Act.
D. An employer of a background artist that is eligible for a film production tax credit pursuant to the Film Production Tax Credit Act shall agree in writing to pay a background artist for all days and hours worked as a condition to be eligible for the film production tax credit.
E. The department shall adopt rules necessary to carry out the purposes of the Background Artist Act.
SECTION 6. [NEW MATERIAL] VIOLATIONS--MISDEMEANOR--PENALTIES.--
A. A person who violates the provisions of the Background Artist Act:
(1) on a first offense, is guilty of a misdemeanor and upon conviction shall be sentenced pursuant to Section 31-19-1 NMSA 1978; and
(2) for a second and subsequent offense, is guilty of a misdemeanor and shall be sentenced pursuant to Section 31-19-1 NMSA 1978 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.
B. In addition to any other fees or fines that may be imposed on a person convicted pursuant to this section, the court may order the person to pay restitution pursuant to Section 31-17-1 NMSA 1978.
C. 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.