New Mexico Overtime and Labor Laws
The minimum wage in New Mexico is $7.50 per hour, as of January 2009. Employees who customarily receive at least $30 per month in tips must receive at least $2.13 per hour from the employer, and the employee’s wage and tips must combine to equal at least $7.50 per hour.
If a worker meets an exemption under New Mexico law (meaning he is not an “employee” and is not entitled to minimum wage), he may still be entitled to minimum wage under federal law, which is currently $7.25.
New Mexico follows federal law for overtime in many respects and varies on others. All non-exempt employees must be paid 1.5 times their regular hourly rate for all hours worked over 40 in a seven-day week. Although the 40-hour workweek averages out to the standard eight hours per weekday, overtime is calculated on a weekly basis. This means that even if an employee works 12 hours in one workday, he is not entitled to overtime pay unless he works more than 40 hours in that week. New Mexico wage law prohibits employers from requiring an employee to work more than 16 hours in a day, except in emergency situations.
Employers must follow both the New Mexico Minimum Wage Act and United States federal law, which require employers to pay all “employees” a minimum wage and increased rate for overtime. However, the definition of employee has many exceptions under New Mexico labor law. The following people are not considered employees, meaning they are not entitled to minimum wage or overtime:
- Person paid on a commission or piece-work basis
- Person employed in a bona fide Executive, Administrative, or Professional capacity, regardless of how the person is compensated (salary, hourly, day-rate, etc.)
- To qualify for the Executive exemption, the worker’s primary duty must be performing nonmanual work related to managing a business, he must exercise discretion, he must perform specialized work, and cannot perform more than 20% nonexempt work.
- Foreman, superintendent, or supervisor
- Salesperson (all salespeople including outside salespeople)
- Agricultural worker meeting certain criteria
- Person employed in or about a private home
- Volunteer for nonprofit organizations
- Student working after school or on vacation
- Non-student under the age of 19
- Person employed by any level of government
- Registered apprentice
- Person employed by an ambulance service
- G.I. bill trainee, while training
- Seasonal employee covered by a valid certificate from the Labor and Industrial Commission
- Computer Professionals are presumably covered in many instances as bona fide Professionals, although not explicitly addressed by the Minimum Wage Act
Unlike federal overtime law, the New Mexico Minimum Wage Act does not have an exemption for employees who work for certain motor carriers – including drivers who operate vehicles over 10,000 lbs GVWR in interstate commerce. This means that certain truck drivers in New Mexico may be entitled to overtime pay, despite being exempt from overtime pay under federal law.
Holidays / Vacation
New Mexico does not have a state law requiring additional pay for work done on holidays or weekends. Employers are also not required to offer vacation, holiday or other pay for time not worked. These policies are at the discretion of the employer. On each election day in New Mexico, employers must give their employees two paid hours of leave so that they can vote.
Meal Breaks / Rest Periods
New Mexico wage law implies that any breaks allowed by the employer less than thirty minutes must be treated as working time for which the employee must be paid. Under federal law, breaks of thirty minutes or more can be without pay as long as the employee is fully relieved of his duties.
Reporting Time Pay
Neither New Mexico nor the Federal law requires payment if an employee reports to work expecting to work for a certain number of hours but does not get to work their full schedule.
Employers in New Mexico must set paydays no more than 16 days apart. More specifically, wages for hours worked between the 1st and 16th of the month must be paid by the 25th of that month. Wages for hours worked after the 16th must be paid by the 10th of the following month. Employers may opt to pay the following workers on a monthly basis, rather than semi-monthly:
Statute of Limitations
- Outside salesperson
- Workers paid on a commission, piece- or day-rate basis
Employees seeking unpaid overtime wages under state law have one year to file suit. Employees bringing wage claims must bring suit within three years of the alleged violation. Under federal law, overtime claims can recover pay going back either two or three years from the date a lawsuit is filed.
Remedies / Penalties / Retaliation
New Mexico employers who unlawfully withhold wages are liable for as much as double
the amount of unpaid wages plus costs, and attorney’s fees. Failure to pay appropriate wages is also a crime. In addition to civil penalties, violators can face misdemeanor charges.
New Mexico law allows workers to bring class action lawsuits against employers for failure to properly pay employees, and there are no opt-in requirements.
New Mexico specifically prohibits retaliation against any employee seeking payment under the Minimum Wage Act. Employers may not discharge, demote, deny promotion, or discriminate in any way against an employee asserting a claim or right under the law.
New Mexico has taken special care to protect day laborers by passing the Day Laborer Act. This law governs day laborer service agencies, defined as entities (labor broker, labor pool, etc.) that provide day laborers to third-party employers for a fee. These employees must be paid in cash or with a common instrument payable in cash (check, money order, pre-paid card, etc.) and be given a statement showing each and every deduction that has been made.
Employers who do not properly pay day laborers are liable for three times
the entire amount of unpaid wages, plus costs, and attorney’s fees.
and we can give you more information and review your specific circumstances. You can submit your information using the convenient case-evaluation-form
, send an email
attorney Michael Lore.