NM Stat § 50-4-21 (2021)
2021 New Mexico Statutes|Chapter 50 - Employment Law|Article 4 - Labor Conditions; Payment of Wages|Section 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 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; andC. "employee" includes an individual employed by an employer, but shall not include:(1) an individual employed in a bona fide executive, administrative or professional capacity and forepersons, superintendents and supervisors;(2) 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;(3) 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;(4) salespersons or employees compensated upon piecework, flat rate schedules or commission basis;(5) registered apprentices and learners otherwise provided by law;(6) G.I. bill trainees while under training;(7) 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;(8) 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 person-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;(9) an employee engaged in the handling, drying, packing, packaging, processing, freezing or canning of any agricultural or horticultural commodity in its unmanufactured state; or(10) 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. History: 1953 Comp., § 59-3-21, enacted by Laws 1955, ch. 200, § 2; 1963, ch. 227, § 2; 1965, ch. 121, § 1; 1967, ch. 188, § 1; 1971, ch. 232, § 1; 1973, ch. 392, § 1; 1975, ch. 71, § 1; 1975 (1st S.S.), ch. 3, § 1; 1977, ch. 214, § 1; 1979, ch. 269, § 1; 1983, ch. 311, § 1; 2007, ch. 46, § 45; 2007, ch. 47, § 1; 2008, ch. 2, § 1; 2019, ch. 114, § 1; 2019, ch. 242, § 2; 2021, ch. 10, § 1. ANNOTATIONSThe 2021 amendment, effective June 18, 2021, revised the definition of "employee", as used in the Minimum Wage Act, to remove the exception to the minimum wage requirement for secondary school students; and deleted Paragraph C(6) and redesignated former Paragraphs C(7) through C(11) as Paragraphs C(6) through C(10).2019 Amendments. — Laws 2019, ch. 114, § 1, effective January 1, 2020, removed exemptions from the minimum wage for students regularly enrolled in primary and secondary schools working after school hours or on vacation and for persons eighteen years of age or under who are not graduates of a secondary school; in Subsection C, deleted former Paragraph C(6) and redesignated former Paragraphs C(7) and C(8) as Paragraphs C(6) and C(7), respectively; and deleted former Paragraph C(9) and redesignated former Paragraphs C(10) through C(13) as Paragraphs C(8) through C(11), respectively.Laws 2019, ch. 242, § 2, effective June 14, 2019, revised the definition of "employee" as used in the Minimum Wage Act, and removed the exception of domestic service from wage protections; and in Subsection C, deleted former Paragraph C(1) and redesignated former Paragraphs C(2) through C(1) as Paragraphs C(1) through C(13), respectively.The 2008 amendment, effective January 18, 2008, changed the definitions of "employer" and "employee" to exclude the state or any political subdivision of the state, except that for purposes of Subsection A of 50-4-22 NMSA 1978, the state or any political subdivision of the state is included in the definitions of "employer" and "employee". The 2007 amendment, effective January 1, 2008, in Subsection C, deleted Paragraph (10), relating to persons employed by ambulance services; relettered Paragraphs (11) to (13) as Paragraphs (10) to (12); added "or in milk production" to Subparagraph (3) of Paragraph (12); and added Paragraph (13) relating to an employee engaged in processing of any agricultural or horticultural commodity. Workers' compensation cases not considered in construing meaning of "work". — In arguing the meaning of "work" in the context of the Minimum Wage Act, workers' compensation cases should not be considered because they deal with statutory definitions which differ from the definitions in the Minimum Wage Act. Garcia v. Am. Furniture Co., 1984-NMCA-090, 101 N.M. 785, 689 P.2d 934, cert. denied, 101 N.M. 686, 687 P.2d 743 and 102 N.M. 7, 690 P.2d 450. Coaching and managing employer's softball team not equivalent to "employment" by that employer for purposes of the Minimum Wage Act. Garcia v. Am. Furniture Co., 1984-NMCA-090, 101 N.M. 785, 689 P.2d 934, cert. denied, 101 N.M. 686, 687 P.2d 743 and 102 N.M. 7, 690 P.2d 450. Municipal employers. — Municipalities, as political subdivisions of the state, are not "employers" as defined by the Minimum Wage Act and are therefore exempt from the overtime compensation requirements of the act, but when a municipality elects to provide overtime compensation, it must comply with the overtime compensation schedule set forth in 50-4-2 NMSA 1978. Rainaldi v. City of Albuquerque, 2014-NMCA-112. Substantial evidence supported finding that worker was administrative employee exempted from the act. Valentine v. Bank of Albuquerque, 1985-NMSC-033, 102 N.M. 489, 697 P.2d 489.Worker paid on a piecemeal basis was exempt from the overtime provisions of the Minimum Wage Act. — Where a pick-up and delivery truck driver who worked for defendant motor carrier filed an action alleging that she was an employee, rather than an independent contractor, and thus entitled to overtime payments under the New Mexico Minimum Wage Act (MWA), §§ 50-4-19 through 50-4-30 NMSA 1978, and where the evidence established that plaintiff signed a contract that required her to pick up and deliver all packages in the service area each day in exchange for weekly settlement payments and that settlements included payments based on the number of stops and packages picked up and delivered, the number of miles driven, fuel settlements based on fuel price changes in the service area, a subsidy providing an additional stipend based on the number of stops made, and weekly payments, which included a per-package payment for any packages delivered outside the service area, defendant's motion for summary judgment was granted because the MWA explicitly excludes salespersons or employees compensated upon piecework, flat rate schedules or commission basis from its definition of employees covered by the act, and plaintiff was paid a specifically calculated rate per package picked up, per package delivered, per stop made on her route, and per excess mile driven in a given day, logical examples of a piecework compensation system. Armijo v. FedEx Ground Package System, Inc., 405 F. Supp. 3d 1267 (D. N.M. 2019). "Bona fide executive, administrative or professional" defined. — Adopting the federal department of labor's definition of "administrative, executive, and professional employee", an employee is an exempt administrative employee, pursuant to 50-4-21(C)(2) NMSA 1978, if the employee is compensated on a salary or fee basis at a rate of not less than $455 per week exclusive of board, lodging or other facilities, if the employee's primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers, and if the employee's primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. Williams v. Mann, 2017-NMCA-012. Substantial evidence to support finding that employee qualified as an exempt administrative employee. — Where plaintiff brought a claim for unpaid overtime wages under the Minimum Wage Act (MWA), 50-4-19 to 50-4-30 NMSA 1978, the evidence presented at trial that plaintiff's $600 weekly salary was higher than the minimum wage for non-exempt employees under the MWA, that plaintiff's primary duties were related to management or general office operations, and involved the exercise of discretion and independent judgment with respect to matters of significance, including signing contracts with vendors, that plaintiff held herself out as an office manager, that plaintiff dealt with employee discipline and payroll issues, and that plaintiff managed patient information, including bill collection, insurance collection and payments, provided a substantial evidentiary basis for the district court to conclude that plaintiff was an exempt administrative employee under the MWA, and therefore not entitled to unpaid overtime wages. Williams v. Mann, 2017-NMCA-012. Employees compensated on a commission basis are not entitled to overtime wages. — Where plaintiff, a former employee, brought an action on behalf of himself and proposed class against his former employer, alleging violations of New Mexico's Minimum Wage Act (NMMWA) due to employer's failure to pay overtime wages, defendant's motion for summary judgment was granted because defendant compensated plaintiffs on a commission basis, and Subsection C of this section provides that overtime pay requirements do not apply to employees compensated on a commission basis. Corman v. JWS of New Mexico, Inc., 356 F.Supp.3d 1148 (D. N.M. 2018). Plain language of statute permitted finding that a supervisor could be an "employer" for purposes of the Minimum Wage Act. — Where employee, a lease operator, brought a putative class action against employer, an energy company, and a senior superintendent, alleging violations of the New Mexico Minimum Wage Act, 50-4-19 to 50-4-30 NMSA 1978 (act), and where the senior superintendent argued that claims against him should be dismissed because he cannot be an "employer" under the act, the motion to dismiss was denied because the plain language of the definition of "employer" provides that individuals employed by a company may be an "employer" themselves when they take certain actions in relation to employees on behalf of the corporate employer. Anderson v. XTO Energy, Inc., 341 F.Supp.3d 1272 (D. N.M. 2018). Scope of coverage. — A desk clerk is a person employed in an establishment coming within the definition of service establishment. Unless the desk clerk can bring himself within the exceptions of Subsection C, Paragraphs (1) to (12) [now Paragraphs (1) to (7), (10) to (14)], he certainly is a service employee. 1955 Op. Att'y Gen. No. 55-6338 (rendered under prior law). A retail sales clerk, employed for a 48-hour week, paid a minimum weekly wage of $30, plus commissions on sales, is not exempt from the Minimum Wage Act. 1957 Op. Att'y Gen. No. 57-248. A nonprofit organization, furnishing working mothers with child day care services, where mothers pay for services on the basis of financial ability and the nursery is directed and staffed by a supervisor and several other persons who are paid for their services, creates an employer-employee relationship. The employees are persons who devote full time and energy to providing services for salaries or wages and are not exempt under Subsection C(4) of this section. 1968 Op. Att'y Gen. No. 68-04. Tips may not be included in determining minimum wage. — Bellhops come under the provisions of this section as service employees, entitled to $.50 per hour as a minimum wage, but in the absence of an explicit understanding between parties, tips belong to the bellhop and cannot be included in determining minimum wage. 1955 Op. Att'y Gen. No. 55-6309 (rendered under prior law). No exemption for irrigation district employees. — If immunity from suit and exemption from taxation are not necessary to carry out the purposes for which irrigation districts are organized, exemption from paying the minimum wage to employees of the district is not necessary for such a purpose. 1967 Op. Att'y Gen. No. 67-90. Unless employed in agriculture. — Under certain situations one employed to supply water to be used for agricultural purposes may be employed in agriculture and therefore the employer would be exempt from the provisions of the Minimum Wage Act. It is a question of fact whether this would include specific employees of irrigation districts. 1967 Op. Att'y Gen. No. 67-90. Piece-work basis employees exempt. — The compensation of employees for the separation of mica on the basis of so much per 100 or 200 pounds constitutes the employment of labor on a piece-work basis and is, therefore, exempt from the requirements of the New Mexico wage and hour laws. 1958 Op. Att'y Gen. No. 58-204. Goodwill workers may not be employees under this section. — Goodwill Industries of New Mexico, Inc., is organized as a nonprofit organization for exclusively religious, charitable and educational purposes. It provides rehabilitation services, training, employment and opportunities for the handicapped, disabled and disadvantaged who are unable to compete in the open labor market. 1968 Op. Att'y Gen. No. 68-02. Two businesses not single employer. — The fact that the two businesses occupy proximate premises or even the same premises does not make them a single employing unit. 1957 Op. Att'y Gen. No. 57-173. Hospital employees. — Hospitals did not have to pay their employees the hourly wage rate prescribed by the 1963 Minimum Wage Act because hospital employees were not covered by the minimum wage provision pertaining to "employees". 1963 Op. Att'y Gen. No. 63-67 (rendered under prior law). Law reviews. — For note, "Public Labor Disputes - A Suggested Approach for New Mexico," see 1 N.M. L. Rev. 281 (1971). Am. Jur. 2d, A.L.R. and C.J.S. references. — Who is employed in "professional capacity," within exemption, under 29 USCS § 213(a)(1), from minimum wage and maximum hours provisions of Fair Labor Standards Act, 77 A.L.R. Fed. 681. What constitutes "amusement or recreational establishment" within meaning of seasonal amusement exemption from Fair Labor Standards Act (29 USCS § 213(a)(3)), 88 A.L.R. Fed. 880. Validity and construction of domestic service provisions of Fair Labor Standards Act (29 U.S.C. §§ 201 et seq.), 165 A.L.R. Fed. 163.