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 11.1.2.15 - PROCEDURE FOR INVESTIGATION OF VIOLATIONS

Current through Register Vol. 35, No. 13, July 16, 2024
A. The director shall investigate a complaint
				filed by any adversely affected party, any interested party, or an agent
				thereof, regarding potential violations of the PWMWA and shall give priority to
				complaint involving open projects before the contracting agency has made final
				payment on the project.
B. The
				director shall determine if there is a probable cause violation and convey all
				relevant information to the contracting agency, prime contractor and bonding
				companies.
C. If the director
				determines there is probable cause of a violation, an investigation shall be
				undertaken and the director shall request, or subpoena, all certified payroll
				records and other relevant financial records from either the subcontractor or
				the prime contractor. The director has a non-discretionary duty, upon probable
				cause to request all payroll records in question from either the prime
				contractor or the subcontractor. The contractor or subcontractor shall provide
				legible copies of the requested records within 10 business days of the receipt
				of the director's written request or subpoena. If the director does not receive
				records pursuant to the initial request or the subpoena, the director may
				suspend the contractor's LEF registration and order the withholding of funds
				from the prime contractor of the project. If an LEF registration is suspended
				due to non-response, the contractor shall submit a new registration and
				registration fee to the division upon compliance with the director's record
				request.
D. The director shall,
				within 30 days of the filing of a complaint by any employee, contracting
				agency, contractor, or other interested person, or any agent thereof, giving
				reliable allegations establishing probable cause of violations of the PWMWA
				commence an investigation of the allegations contained within the complaint.
				The director shall within 75 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 of fringe benefits or other violation
				of the PWMWA, including the amount due and owing by any contractor or
				subcontractor to any employee. If the complaint is of significantly complex
				nature, or involves multiple projects or job sites, the director may extend the
				time in which the determination is to be made by up to six months by providing
				a written notice and explanation to all parties.
E. The director shall provide the contractor,
				subcontractor, employer, or other persons against whom the complaint has been
				made an opportunity to respond to the complaint and provide exculpatory
				evidence prior to issuing the determination.
F. If it is determined that there has been an
				underpayment of wages or fringe benefits or other violation of the PWMWA, the
				director shall make demand for the payment of the amount due and notify the
				contracting agency of the amount determined to be due. In the absence of a
				voluntary withholding of accrued payments from the contractor, subcontractor,
				employer or other person until the laborers and mechanics employed on the
				project receive a payment for the amount of the underpayment of wages or fringe
				benefits or other violation of the PWMWA. If no violation is found, the
				investigation will be closed and notice sent to all parties.
G. The director shall certify to the
				contracting agency, and the employer involved, the names of persons or firms in
				violation of the PWMWA, specifying the amounts due to each employee. The
				director shall also promptly notify the contracting agency and the employer if
				the investigation determines that the failure of the employer to comply with
				the PWMWA was found to be willful.
H. Mediation may be requested by any party at
				any time throughout the investigation by submitting a written request to the
				director.
I. Any adversely
				affected interested party or that party's agent may appeal any determination,
				finding, or action of the director to the labor an industrial commission
				pursuant to the procedures set forth in
				11.1.2.17
				NMAC.