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.
The following cities and counties have enacted a higher minimum wage than New Mexico state law:
The city of Albuquerque has set 2 different minimum wage rates depending on if an employer offers healthcare and/or childcare benefits to the employee.
If benefits of $2500/year or more are offered, the 2016 minimum wage is $7.75/hour. It will increase to $7.80/hour as of 1/1/2017.
If less than $2500/year or no benefits are offered, the 2016 minimum wage is $8.75/hour. It will increase to $8.80/hour as of 1/1/2017.
For 2016, the minimum wage for tipped employees is $5.25/hour and will increase to $5.30/hour as of 1/1/2017. The tipped employee must earn enough tips to bring their total wages to the applicable minimum wage amount listed above.
Bernalillo County has set 2 different minimum wage rates depending on if an employer offers healthcare and/or childcare benefits to the employee.
If less than $2500/year or no benefits are offered, minimum wage is currently set at $8.65 per hour for employers located in Bernalillo County. On January 1, 2017, minimum wage will increase to $8.70 per hour due to a cost of living increase. Tipped employees may be paid $2.13/hour as long as their tips bring them to at least the minimum wage amount.
If benefits of $2500/year or more are offered, the minimum wage is $1 less or $7.65 per hour for 2016 and will increase to $7.70 as of 1/1/2017.
For 2018, minimum wage within the city limits of Las Cruces remains at $9.20 per hour, the same rate as it was in 2017. The tipped employee minimum wage rate is $3.68 per hour. The minimum wage will increase to $10.10 in 2019 and will be adjusted based on the Consumer Price index staring in 2020. The prior minimum wage rate was $8.40 per hour as of 1/1/2015.
As of March 1, 2018, The minimum wage in the city of Santa Fe is $11.40 per hour. This includes part-time and temporary employees. The prior minimum wage in the city was $10.91 per hour. The city ordinance does not set a separate minimum wage for tipped employees; therefore, employers must comply with the state or federal law which requires tipped employees be paid at least $2.13/hour. These rates may increase in 2019 if the cost of living increases.
Santa Fe County:
As of 3/1/2018, the minimum wage in Santa Fe county increased to $11.40 per hour. The prior minimum wage was $11.09 in 2017, $10.91 in 2016, $10.84 in 2015, $10.66 in 2014, $10.51 in 2013, $10.29 in 2012, and $8.50 prior to that. This applies to businesses located in Santa Fe county outside the incorporated boundaries of the City of Santa Fe, City of Espanola, and the Town of Edgewood. The minimum wage is will be raised on March 1st of each year if the cost of living increases. The base wage for tipped employees is 30% of the minimum wage rate, so $3.42 as of March 1, 2018. Previously it was $3.33 for 2017, $3.27 for 2016, and $3.25 for 2015.
Overtime in New Mexico:
New Mexico overtime laws follow federal law for overtime in many respects, but varies in a few important ways specific to the New Mexico overtime laws – including the potential for workers to recover up to three times the amount of unpaid back overtime wages they are owed. All non-exempt employees are required to 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 according to New Mexico overtime laws. 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, under New Mexico overtime laws, meaning they are not entitled to minimum wage or overtime under state law:
- 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 – this includes interstate commerce drivers who operate vehicles over 10,000 lbs GVWR. 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 in New Mexico:
New Mexico follows the federal law, meaning it does not require additional pay for work done on holidays or weekends. Employers are not required to offer pay for time not worked, including vacations or holidays. 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.
New Mexico 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 do not require pay, as long as the employee is relieved fully of his or her 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.
New Mexico Pay Periods:
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:
- Outside salesperson
- Workers paid on a commission, piece- or day-rate basis
Statute of Limitations:
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, employers can also face misdemeanor charges. In New Mexico, there are no opt-in requirements for employees to bring class action lawsuits against employers who fail to properly pay employees. New Mexico specifically prohibits retaliation against any employee seeking proper payment from an employer under the Minimum Wage Act. Employers may not demote, discharge, deny promotion, or discriminate in any way against an employee who is asserting a claim or right under the law.
Day Laborers 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.
Contact us today and we can give you more information about New Mexico overtime laws, including a free and confidential review your specific circumstances. You can submit your information using the convenient Case Evaluation Form , send an email or call attorney Michael Lore.