NM Stat § 13-4-11 (2021)
2021 New Mexico Statutes|Chapter 13 - Public Purchases and Property|Article 4 - Public Works Contracts|Section 13-4-11 - Prevailing wage and benefit rates determined; minimum wages and fringe benefits on public works; weekly payment; withholding funds.

A. Every contract or project in excess of sixty thousand dollars ($60,000) that the state or any political subdivision thereof is a party to for construction, alteration, demolition or repair or any combination of these, including painting and decorating, of public buildings, public works or public roads of the state and that requires or involves the employment of mechanics, laborers or both shall contain a provision stating the minimum wages and fringe benefits to be paid to various classifications of laborers and mechanics, which shall be based upon the wages and benefits that will be determined by the director to be prevailing for the corresponding classifications of laborers and mechanics employed on contract work of a similar nature in the state or locality, and every contract or project shall contain a stipulation that the contractor, subcontractor, employer or a person acting as a contractor shall pay all mechanics and laborers employed on the site of the project, unconditionally and not less often than once a week and without subsequent unlawful deduction or rebate on any account, the full amounts accrued at time of payment computed at wage rates and fringe benefit rates not less than those determined pursuant to Subsection B of this section to be the prevailing wage rates and prevailing fringe benefit rates issued for the project.B. Annually, the director shall determine prevailing wage rates and prevailing fringe benefit rates for respective classifications of laborers and mechanics employed on public works projects at the same wage rates and fringe benefit rates used in collective bargaining agreements between labor organizations and their signatory employers that govern predominantly similar classifications of laborers and mechanics for the locality of the public works project and the crafts involved; provided that:(1) if the prevailing wage rates and prevailing fringe benefit rates cannot reasonably and fairly be determined in a locality because no collective bargaining agreements exist, the director shall determine the prevailing wage rates and prevailing fringe benefit rates for the same or most similar classification of laborer or mechanic in the nearest and most similar neighboring locality in which collective bargaining agreements exist;(2) the director shall give due regard to information obtained during the director's determination of the prevailing wage rates and the prevailing fringe benefit rates made pursuant to this subsection;(3) any interested person shall have the right to submit to the director written data, personal opinions and arguments supporting changes to the prevailing wage rate and prevailing fringe benefit rate determination; and(4) prevailing wage rates and prevailing fringe benefit rates determined pursuant to the provisions of this section shall be compiled as official records and kept on file in the director's office, and the records shall be updated in accordance with the applicable rates used in subsequent collective bargaining agreements.C. The prevailing wage rates and prevailing fringe benefit rates to be paid shall be posted by the contractor or person acting as a contractor in a prominent and easily accessible place at the site of the work; provided that there shall be withheld from the contractor, subcontractor, employer or a person acting as a contractor so much of accrued payments as may be considered necessary by the director or contracting officer of the state or political subdivision to pay to laborers and mechanics employed on the project the difference between the prevailing wage rates and prevailing fringe benefit rates required by the director to be paid to laborers and mechanics on the work and the wage rates and fringe benefit rates received by the laborers and mechanics and not refunded to the contractor, subcontractor, employer or a person acting as a contractor or the contractor's, subcontractor's, employer's or person's agents.D. Certified weekly payroll records of a contracting agency are subject to inspection pursuant to the Inspection of Public Records Act [Chapter 14, Article 3 NMSA 1978]; provided that the request shall be fulfilled within twenty days of receipt of the written request. Certified weekly payroll records are subject to record retention requirements applicable to payroll records of a state agency.E. Notwithstanding any other provision of law applicable to public works contracts or agreements, the director may, with cause:(1) issue investigative or hearing subpoenas for the production of documents or witnesses pertaining to public works prevailing wage projects; and(2) attach and prohibit the release of any assurance of payment required under Section 13-4-18 NMSA 1978 for a reasonable period of time beyond the time limits specified in that section until the director satisfactorily resolves any probable cause to believe a violation of the Public Works Minimum Wage Act or its implementing rules has taken place.F. A person may file with the director a complaint that a contractor, subcontractor, employer or person acting as a contractor on the project has failed to pay the person wages or fringe benefits at the rates required by the Public Works Minimum Wage Act. Within thirty days after the filing of the complaint, either party may request in writing a mediation to resolve the complaint.G. The director shall, within thirty days of the filing of the complaint, commence an investigation of the allegations contained in the complaint. The director shall, within seventy-five days after the completion of mediation or if no mediation is requested, within seventy-five days after the filing of the complaint, make a determination supported by findings of fact and conclusions of law whether there has been an underpayment of wages or fringe benefits or other violation of the Public Works Minimum Wage Act; provided that if the complaint is of a continuing or significantly complex nature or involves multiple projects or job sites, the director may extend the time in which to make a determination by up to six months by providing written notice and an explanation to all parties of the need to extend the time. Prior to issuing a determination, the director shall provide the contractor, subcontractor, employer or other person against whom the complaint has been filed with an opportunity to respond to the complaint and provide any exculpatory evidence.H. If the director determines that there has been an underpayment of wages or fringe benefits or a violation of the Public Works Minimum Wage Act, the director shall, in the absence of a voluntary resolution by the parties and within thirty days of making that determination, order the withholding of accrued payments as provided in Subsection C of this section.I. The director shall issue rules necessary to administer and accomplish the purposes of the Public Works Minimum Wage Act.History: 1953 Comp., § 6-6-6, enacted by Laws 1965, ch. 35, § 1; 1979, ch. 35, § 1; 1991, ch. 224, § 1; 2005, ch. 253, § 1; 2009, ch. 206, § 3; 2020, ch. 47, § 1. ANNOTATIONSThe 2020 amendment, effective May 20, 2020, provided a process to resolve prevailing wage complaints, and increased penalties; in Subsection A, replaced each occurrence of "classes" with "classifications"; in Subsection B, in the introductory clause, added "Annually", after "respective", deleted "classes" and added "classifications", and deleted "classes or" preceding the next occurrence of "classifications", in Paragraph B(1), deleted "class or" preceding "classifications"; in Subsection C, after "provided that there", deleted "may" and added "shall", and after "considered necessary by the", added "director"; added a new Subsection D and redesignated former Subsection D as Subsection E; and added new Subsections F through H and redesignated the succeeding subsection accordingly.The 2009 amendment, effective July 1, 2009, in Subsection A, after "stating the minimum wages", added "and fringe benefits"; after "based upon the wages", added "and benefits"; after "payment computed at wage rates", added "and fringe benefit rates" and after "not less than those", deleted "stated in the minimum wage rates" and added "determined pursuant to Subsection B of this section to be the prevailing wage rates and prevailing fringe benefit rates"; deleted former Subsection B, which provided that the director shall conduct a continuing program for obtaining and compiling wage-rate information; added Subsection B; and in Subsection C, at the beginning of the sentence, deleted "scale of wages" and added "prevailing wage rates and prevailing fringe benefit rates"; after "the difference between the", deleted "rates of wages" and added "prevailing wage rates and prevailing fringe benefit rates"; and after "mechanics on the work and the", changed "rates received by such laborers" to "wage rates and fringe benefit rates received by the laborers". The 2005 amendment, effective July 1, 2005, increased the threshold amount of a contract or project from $20,000 to $60,000 in Subsection A and added Subsection D to provide that the director may with cause issue subpoenas for production of documents or witnesses and attach and prohibit the release of any assurance payment until the director resolves any probable cause to believe that a violation has occurred. The 1991 amendment, effective July 1, 1991, substituted "director of the labor and industrial division of the labor department" for "director" and for "chief of the labor and industrial bureau" throughout the section; inserted "subcontractor, employer or any person acting as a contractor" following "contractor" near the middle of the introductory paragraph and in two places in Subsection B; in the introductory paragraph, substituted "contract or project" for "contract based upon these specifications" near the middle and "minimum wage rates issued for the project" for "advertised specifications" at the end; in Subsection B, inserted "or person acting as a contractor" near the beginning and substituted "employed on the project the difference between the rates of wages required by the director of the labor and industrial division of the labor department" for "employed by the contractor or subcontractor on the work the difference between the rates of wages required by the contract" near the middle; and made minor stylistic changes throughout the section. The word "determine" is synonymous with "ascertain". City of Albuquerque v. Burrell, 1958-NMSC-070, 64 N.M. 204, 326 P.2d 1088. Private non-profit corporations. — The standard to be applied when determining whether private non-profit corporations that lease hospitals from government entities meet the definition of "political subdivision" under this section is whether under the totality of the circumstances the private entity is so intertwined with a public entity that the private entity becomes an alter ego of the public entity. Memorial Med. Ctr. v. Tatsch Constr., Inc., 2000-NMSC-030, 129 N.M. 677, 12 P.3d 431. Procurement Code not applicable to non-state fair concession contracts. — Where plaintiff, a for-profit corporation providing dental services, was awarded a contract to provide dental services for Albuquerque public schools (APS) in response to a request for information (RFI) issued by APS, which stated that all services performed per an award for the RFI must be performed at no cost to APS and that successful applicants would be directed to bill medicaid, other third-party payers or provide services pro bono, and where plaintiff filed a complaint for declaratory judgment requesting an order declaring that the RFI was subject to the Procurement Code, the district court did not err in dismissing plaintiff's complaint, because APS's RFI falls under the definition of a concession contract, and under the clear language of 13-1-30(A) NMSA 1978, non-state fair concession contracts are not covered by the Procurement Code. Mira Consulting, Inc. v. Board of Educ., 2017-NMCA-009. Section inapplicable when telecommunication system replaced. — This section did not apply to a contract whereby the telecommunications system in a state university was simply replaced without any construction or alteration of the buildings and when cables were installed in preexisting tunnels. Universal Commc'n Sys. v. Smith, 1986-NMSC-076, 104 N.M. 754, 726 P.2d 1384. The director has a nondiscretionary duty to set prevailing wage rates in accordance with collective bargaining agreements. — This section imposes a mandatory, nondiscretionary duty on the director of the labor relations division of the New Mexico department of workforce solutions (director) to set prevailing wage rates and prevailing fringe benefit rates according to collective bargaining agreements for all public works projects costing more than sixty thousand dollars to which the state or any political subdivision is a party. This section also imposes a continuing duty on the director to update the prevailing wage and prevailing benefit rates according to applicable rates used in subsequent collective bargaining agreements. N.M. Bldg. and Constr. Trades Council v. Dean, 2015-NMSC-023. Where petitioners, an alliance of craft unions representing the interests of thousands of New Mexico employees working on public works projects throughout the state, sought a writ of mandamus ordering the director of the labor relations division of the New Mexico department of workforce solutions (director) to set prevailing wage and prevailing benefit rates in accordance with the Public Works Minimum Wage Act, §§ 13-4-10 to -17 NMSA 1978, mandamus was proper because 13-4-11 NMSA 1978 imposes a mandatory, nondiscretionary duty on the director to set prevailing wage rates and prevailing fringe benefit rates according to collective bargaining agreements for all public works projects costing more than sixty thousand dollars to which the state or any political subdivision is a party. N.M. Bldg. and Constr. Trades Council v. Dean, 2015-NMSC-023. Section violated. — Classification of and wage payments to an employee is in violation of this section, when the interpretation and application of standard job classifications and descriptions were not based upon the prevailing wages being paid on contract work of a similar nature to corresponding classes of laborers and mechanics performing the same work as that employee performed. L.H. Lacy Co. v. State Labor & Indus. Comm'n, 1976-NMSC-065, 89 N.M. 563, 555 P.2d 684. Section resembles Davis-Bacon Act. — The New Mexico statute is practically identical with the Davis-Bacon Act (40 U.S.C.S. § 276a), and if a contractor was challenging the law the New Mexico supreme court would readily accept the reasoning of the United States supreme court. City of Albuquerque v. Burrell, 1958-NMSC-070, 64 N.M. 204, 326 P.2d 1088. Duty to determine prevailing ways. — Before promulgation of an order setting the minimum wage scale to be paid on public works a determination must be made of the prevailing wages being paid in a locality for like work. City of Albuquerque v. Burrell, 1958-NMSC-070, 64 N.M. 204, 326 P.2d 1088. Employer cannot be ordered to pay additional wages. — This section expressly confers the power to determine the prevailing wage but does grant the power to order an employer to pay the additional wages determined to be due his laborers. If it is determined that a person or firm has failed to pay the prevailing minimum wages, then the certification procedure outlined in Paragraphs [Subsections] A and B of Section 13-4-14 NMSA 1978 must be followed. Grauerholtz v. New Mexico Labor & Indus. Comm'n, 1986-NMSC-071, 104 N.M. 674, 726 P.2d 351. Health benefits are part of prevailing wage. — The health benefits provided pursuant to Executive Order No. 2007-49, issued on October 25, 2007, titled "State of New Mexico Contractor Health Coverage Requirement", which directs executive branch state agencies that solicit and award contracts after January 1, 2008 to require prospective contractors to offer health care coverage to their New Mexico employees as part of their procurement submittal, is a valid, enforceable contract that may be accounted for as part of the prevailing wage. 2008 Op. Att'y Gen. No. 08-05. Section preempted. — This act is preempted by the federal government's predetermined wage rate only when the New Mexico rate is lower than that predetermined by the federal government. 1971 Op. Att'y Gen. No. 71-114. When section applies. — When the political subdivision contracts with another entity to carry out public works, the public works minimum wage rates apply. 1967 Op. Att'y Gen. No. 67-100. When section does not apply. — When a school board acts as both the contractor and political subdivision, this section does not apply. One entity cannot contract with itself under this section. 1967 Op. Att'y Gen. No. 67-100. Submission of false wage rate data may be perjury or false swearing. 1964 Op. Att'y Gen. No. 63-160. Am. Jur. 2d, A.L.R. and C.J.S. references. — 64 Am. Jur. 2d Public Works and Contracts §§ 216 to 240. Validity of statute, ordinance, or charter provision requiring that workmen on public works be paid the prevailing or current rate of wages, 18 A.L.R.3d 944. What entities or projects are "public" for purposes of state statutes requiring payment of prevailing wages on public works projects, 5 A.L.R.5th 470. Who is "employee," "workman," or the like, or contractor subject to state statute requiring payment of prevailing wages on public works projects, 5 A.L.R.5th 513. What are "prevailing wages," or the like, for purposes of state statute requiring payment of prevailing wages on public works projects, 7 A.L.R.5th 400. Employers subject to state statutes requiring payment of prevailing wages on public works projects, 7 A.L.R.5th 444. What projects involve work subject to state statutes requiring payment of prevailing wages on public works projects, 10 A.L.R.5th 337. Employees' private right of action to enforce state statute requiring payment of prevailing wages on public works projects, 10 A.L.R.5th 360. 51B C.J.S. Labor Relations §§ 1022, 1039.