New Mexico Administrative Code › Title 11 - LABOR AND WORKERS' COMPENSATION › Chapter 1 - LABOR GENERAL PROVISIONS › Part 2 - PUBLIC WORKS MINIMUM WAGE ACT POLICY MANUAL › Section 11.1.2.16 - PROCEDURE FOR ENFORCEMENT ACTIONS

Current through Register Vol. 35, No. 13, July 16, 2024
A. If the contractor or subcontractor has not
				complied with the director's request for certified payroll records or if the
				director determines that a violation of the PWMA has occurred and not been
				rectified, notice shall be given to the contracting agency and the contractor
				or subcontractor that payment to the non-compliant contractor or subcontractor
				in an amount sufficient to pay the laborers and mechanics working on the
				project shall be withheld by the contracting agency until compliance has been
				secured.
B. If the director
				determined that any laborer or mechanic employed on the site of the project has
				been, or is being, paid at a rate less than the rates required and in the
				absence of a voluntary resolution, the contracting agency shall, within 30 days
				of the director's determination, by written notice, terminate the right of the
				contractor, subcontractor, or employer who failed to pay appropriate wages to
				proceed with the work or with part of the work as to which there has been a
				failure to pay the required wages or fringe benefits. The contracting agency
				shall prosecute the work to completion by contract or otherwise. The
				contractor, subcontractor, or employer, or a person acting as surety thereof,
				shall be liable to the state for any excess costs as a result of the
				termination of the contractor's, subcontractor's, or employer's right to
				proceed with the work.
C. The
				director may cancel, revoke, or suspend the registration of any party required
				to be registered pursuant to the PWMWA for failure to comply with the
				registration requirements or for good cause, pursuant to Section
				13-4-14.2
				NMSA 1978. The director shall determine when good cause exists to cancel,
				revoke, or suspend the registration of any party. Frequent violations or a
				single substantive violation of the PWMWA could be good cause to cancel,
				revoke, or suspend the registration of any party.
D. The director shall include the name of any
				contactor or subcontractor who has willfully violated the PWMWA on a list to be
				distributed to all department of the state, pursuant to Section
				13-4-14
				NMSA 1978. The cancellation, suspension, or revocation shall remain in effect
				for three years, unless the contractor or subcontractor promptly corrects the
				action that led to the cancellation, suspension, or revocation of the
				registration and complies with any requirements imposed by the director as
				conditions of reinstatement.
E. If
				the director determines that there was an underpayment of wages or fringe
				benefits, the contractor, subcontractor, or employer shall be liable to any
				affected employee for $100 for each calendar day the contractor, subcontractor,
				or employer willfully failed to pay appropriate wages in violation of the
				PWMWA. In addition, if the aggregate underpayment of wages or fringe benefits
				is greater than $500, the contractor, subcontractor, or employer responsible
				for the underpayment shall be liable to any affected employee for three times
				the amount of the employee's unpaid wages or fringe benefits.
F. Prior to taking any enforcement action,
				the director shall provide notice of contemplated action to the contractor,
				subcontractor, or employer, setting out the basis for the proposed enforcement
				action.
(1) The notice of contemplated action
				shall be provided at least 15 days prior to any final enforcement action taken
				by the director.
(2) Any party who
				received a notice of contemplated action may provide a written response to the
				director for consideration prior to the final enforcement action.
(3) The director shall consider the written
				response provided by a party prior to taking any final enforcement
				action.
(4) After consideration of
				the response, the director may continue with the final enforcement action as
				proposed in the notice of contemplated action.