A. An employer in this state shall designate regular pay days, not more than sixteen days apart, as days fixed for the payment of wages to all employees paid in this state. The employer shall pay for services rendered from the first to the fifteenth days, inclusive, of any calendar month by the twenty-fifth day of the month during which services are rendered, and for all services rendered from the sixteenth to the last day of the month, inclusive, of any calendar month by the tenth day of the succeeding month. Where computation of earnings and of amounts due, preparation of payrolls and issuance of paychecks are at a central location outside New Mexico, the employer shall pay for services rendered from the first to the fifteenth days, inclusive, of any calendar month by the last of the month during which services are rendered, and for all services rendered from the sixteenth to the last day of the month, inclusive, of any calendar month by the fifteenth day of the succeeding month.
B. Except as provided by rules of the department of finance and administration for payment of salaries and wages to state employees, other than employees of institutions of higher education, promulgated pursuant to Section 10-7-2 NMSA 1978, an employer shall pay wages in full, less lawful deductions and less payroll deductions authorized by the employer and employee. Wages shall be paid in lawful money of the United States or in checks, payroll vouchers or drafts on banks, convertible into cash on demand at full face value or, with the voluntary authorization of the employer, employee and financial institution, by deposit to the account of the employee in any bank, savings and loan association, credit union or other financial institution authorized by the United States or one of the several states to receive deposits in the United States, without any reduction or deduction, except as may be specifically stated in a written contract of hiring entered into at the time of hiring. An employer shall provide an employee with a written receipt that identifies the employer and sets forth the employee’s gross pay, the number of hours worked by the employee, the total wages and benefits earned by the employee and an itemized listing of all deductions withheld from the employee’s gross pay. Nothing contained in Sections 50-4-1 through 50-4-12 NMSA 1978 shall in any way limit or prohibit the payment of wages or compensation at more frequent intervals than those set forth in this section. Where the labor or service to be rendered to an employer is recompensed on a task, piece or commission basis or other method of calculating the amount of wages to be paid, other than a definite and fixed amount in cash, the employer and the employee may agree in writing at the time of hiring that the wages shall be paid on a monthly basis, on or before the tenth day of the succeeding calendar month.
C. Notwithstanding the provisions of Subsection A of this section, an employer may pay professional, administrative or executive employees or employees employed in the capacity of outside salesman, as those terms are defined under the federal Fair Labor Standards Act [29 USCS § 201 et seq.], one time per month, excluding those employees whose wages are subject to provisions of collective bargaining agreements.
HISTORY:
Laws 1937, ch. 109, § 2; 1941 Comp., § 57-302; Laws 1949, ch. 117, § 1; 1953 59-3-2; Laws 1975, ch. 223, § 1; 1991, ch. 95, § 1; 1993, ch. 26, § 1; 2005, ch. 93, § 2.
Amendment Notes.
The 2005 amendment, effective June 17, 2005, in Subsection B, in the first sentence, substituted the exception at the beginning for “Employers” and in the second sentence, inserted “Wages shall be paid” at the beginning; and substituted “wages” for “salaries” near the end of Subsection C.
Notes to Decisions
Employer.
Correctional officers, sergeants, and lieutenants at a county detention center and emergency dispatchers at a county central emergency dispatch center were unable to sue the county for ordinary wages. Bustillos v. Bd. of County Comm'rs, 310 F.R.D. 631, 2015 U.S. Dist. LEXIS 143522 (D.N.M. 2015).
Statute did not provide a cause of action for a dispatcher because she was an employee of a county. Bustillos v. Bd. of County Comm'rs, No. CIV 13-0971 JB/GBW, 2015 U.S. Dist. LEXIS 162698 (D.N.M. Oct. 20, 2015).
City is not excluded from the definition of employer based on the term's absence from the exclusionary statutory language, and the further exclusion of municipalities is not read into the wage payment statute where such language does not there appear; therefore, a city was not excused from complying with a wage payment statute in relation to its payment of overtime to police department employees. Rainaldi v. City of Albuquerque, 2014-NMCA-112, 338 P.3d 94, 2014 N.M. App. LEXIS 48 (N.M. Ct. App. 2014).
Exception.
Lone delineated exception to the payment schedule contained in this statute is expressly applicable to the compensation of certain “state employees” only and does not by extension apply to auxiliaries of the state. Therefore, a city was not excepted from complying with this statute when making overtime compensation payments to police department employees. Rainaldi v. City of Albuquerque, 2014-NMCA-112, 338 P.3d 94, 2014 N.M. App. LEXIS 48 (N.M. Ct. App. 2014).
Exemption.
By electing to compensate its employees for overtime services, a city was not automatically exempted from the statutorily mandated compensation schedule for “all services rendered”; it did not matter that the definition of employer under the New Mexico Minimum Wage Act excluded political subdivisions of the State. Because work completed during overtime hours constituted a service rendered by the employee, determined by the city to be compensable, the city had to pay its employees within ten days of the end of a particular pay period. Rainaldi v. City of Albuquerque, 2014-NMCA-112, 338 P.3d 94, 2014 N.M. App. LEXIS 48 (N.M. Ct. App. 2014).
Federal law.
City's argument that its compensation of overtime to police department employees did not violate this section because it was compliant with federal law was rejected because the decision in Nolan v. City of Chicago, 162 F. Supp. 2d 999 (N.D. Ill. 2001), was distinguishable. The city was not an employer for the purposes of the mandatory compensation of overtime and had shown a previous ability to provide timely calculation of overtime hours. Rainaldi v. City of Albuquerque, 2014-NMCA-112, 338 P.3d 94, 2014 N.M. App. LEXIS 48 (N.M. Ct. App. 2014).
Home rule.
Because this statute articulates an express compensation schedule for all services rendered and contains no broadly worded exception into which municipalities fall, the statute's timeliness mandate serves as an express denial of a city's proffered authority to create its own overtime compensation schedule for police department employees. Under the home rule, because the city acted in a governmental capacity in an area of general public concern, it did not have the autonomy to act free from legislative interference by the state and was bound by the general law directives of this statute. Rainaldi v. City of Albuquerque, 2014-NMCA-112, 338 P.3d 94, 2014 N.M. App. LEXIS 48 (N.M. Ct. App. 2014).
Unemployment compensation.
When an employee did not receive three paychecks on the date specified by her employer as a payday, as required by 50-4-2A NMSA 1978, and was asked to delay cashing a fourth paycheck, the employee had good cause to voluntarily quit her employment; thus, the employee was qualified to receive unemployment benefits. Randolph v. New Mexico Employment Sec. Dep't, 1989-NMSC-031, 108 N.M. 441, 774 P.2d 435, 1989 N.M. LEXIS 163 (N.M. 1989).
Violation.
City's payment of its police department employees violated this section because the overtime compensation schedule did not render payment for overtime services within ten days after the close of the given pay period, but deferred payment for the second week of the pay period until the subsequent pay day, twenty-one days following the conclusion of the pay period. Rainaldi v. City of Albuquerque, 2014-NMCA-112, 338 P.3d 94, 2014 N.M. App. LEXIS 48 (N.M. Ct. App. 2014).
OPINIONS OF ATTORNEY GENERAL
Authority of school district to set pay periods.
A school district is not required to pay wages semimonthly to its non-certified school personnel; but it may do so if it wishes. 1988 N.M. Op. Att'y Gen. No. 88-72, 1988 N.M. AG LEXIS 64.