A. The director shall certify to the contracting agency the names of persons or firms the director has found to have failed to pay wages or fringe benefits due employees under the Public Works Minimum Wage Act [13-4-10 to 13-4-17 NMSA 1978] and the amount of arrears. The contracting agency shall pay or cause to be paid to the affected laborers and mechanics, from any accrued payments withheld under the terms of the contract or designated for the project, three times the amount of any wages or fringe benefits found due to the workers pursuant to the Public Works Minimum Wage Act. The director shall, after notice to the affected persons, distribute a list to all departments of the state giving the names of persons or firms the director has found to have willfully violated the Public Works Minimum Wage Act. No contract or project shall be awarded to the persons or firms appearing on this list or to any firm, corporation, partnership or association in which the persons or firms have an interest until three years have elapsed from the date of publication of the list containing the names of the persons or firms. A person to be included on the list to be distributed may appeal the finding of the director as provided in the Public Works Minimum Wage Act.
B. If the accrued payments withheld under the terms of the contract, as mentioned in Subsection A of this section, are insufficient to reimburse all the laborers and mechanics with respect to whom there has been a failure to pay the wages or fringe benefits required pursuant to the Public Works Minimum Wage Act, the laborers and mechanics shall have the right of action or intervention or both against the contractor or person acting as a contractor and the contractor's or person's sureties, conferred by law upon the persons furnishing labor and materials, and, in such proceeding, it shall be no defense that the laborers and mechanics accepted or agreed to less than the required rate of wages or voluntarily made refunds. The director shall refer such matters to the district attorney in the appropriate county, and it is the duty and responsibility of the district attorney to bring civil suit for wages and fringe benefits due and other damages provided for in Subsection C of this section.
C. In the event of an aggregate underpayment of wages or fringe benefits greater than five hundred dollars ($500) to an employee subject to the Public Works Minimum Wage Act or implementing rules, the contractor, subcontractor, employer or a person acting as a contractor 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. In addition, the contractor, subcontractor, employer or person acting as a contractor shall be liable to any affected employee for one hundred dollars ($100) for each calendar day on which a contractor, subcontractor, employer or person acting as a contractor has willfully required or permitted the employee to work in violation of the provisions of the Public Works Minimum Wage Act.
D. In an action brought pursuant to Subsection C of this section, the court shall award, in addition to all other remedies, attorney fees and costs incurred on behalf of an employee adversely affected by a violation of the Public Works Minimum Wage Act by a contractor, subcontractor, employer or person acting as a contractor.
History: 1953 Comp., § 6-6-8, enacted by Laws 1965, ch. 35, § 4; 1991, ch. 224, § 4; 2005, ch. 253, § 3; 2009, ch. 206, § 6; 2020, ch. 47, § 3.
The 2020 amendment, effective May 20, 2020, increased the penalties for failure to pay required wage rates; in Subsection A, after "director has found to have", deleted "disregarded their obligations to" and added "failed to pay wages or fringe benefits due", and after "designated for the project", added "three times the amount of"; in Subsection B, after "fringe benefits due and", deleted "liquidated" and added "other"; in Subsection C, after "In the event of", deleted "any violation of" and added "an aggregate underpayment of wages or fringe benefits greater than five hundred dollars ($500) to an employee subject to", after "a contractor responsible for the", deleted "violation" and added "underpayment", after the first occurrence of "any affected employee for", added "three times the amount of", after the next occurrence of "any affected employee for", deleted "liquidated damages beginning with the first day of covered employment in the sum of", and after "willfully required or permitted", deleted "an individual laborer or mechanic" and added "the employee"; and in Subsection D, after "the court", deleted "may" and added "shall", and after "attorney fees and costs", deleted "to" and added "incurred on behalf of".
The 2009 amendment, effective July 1, 2009, in Subsection A, in the second sentence, after "any wages", added "or fringe benefits"; in Subsection B, after "pay the wages", added "or fringe benefits" and in the last sentence, after "civil suit for wages", added "and fringe benefits"; in Subsection C, after "employee's unpaid wages", added "or fringe benefits"; and in Subsection D, after "subcontractor", changed "employee" to "employer".
The 2005 amendment, effective July 1, 2005, changed the amount of liquidated damages in Subsection C from $10 to $100 and added Subsection D to provide that the court may award attorney fees and costs to an employee adversely affected by a violation of the Public Works Minimum Wage Act.
The 1991 amendment, effective July 1, 1991, substituted "director of the labor and industrial division of the labor department" and "director" for "labor commissioner" and "commissioner" throughout the section; in Subsection A, inserted "or designated for the project" in the second sentence and "or project" in the fourth sentence; in Subsection B, substituted "as mentioned in Subsection A of this section" for "as aforesaid" and inserted "or person acting as a contractor" in the first sentence and substituted "provided for in Subsection C of this section" for "provided herein" at the end of the Subsection; inserted "employer or any person acting as a contractor" in three places in Subsection C; and made minor stylistic changes throughout the section.
Director cannot order employer to pay additional wages, but must follow certification procedure. — Section 13-4-11 NMSA 1978 expressly confers upon the labor commissioner (now director of the labor and industrial division) the power to determine the prevailing wage for purposes of the Public Works Minimum Wage Act. The commissioner (director) does not have the power to order an employer to pay the additional wages determined to be due his laborers. If the commissioner (director) has determined that a person or firm has failed to pay the prevailing minimum wages, then the certification procedure outlined in Subsections A and B must be followed. Grauerholtz v. New Mexico Labor & Indus. Comm'n, 1986-NMSC-071, 104 N.M. 674, 726 P.2d 351.
Private right of action. — Where plaintiffs, on behalf of themselves and all others similarly situated, sued under the Public Works Minimum Wage Act, 13-4-10 to -17 NMSA 1978 (1937, as amended through 2011), alleging that they were not compensated the appropriate wage rate for all hours worked on a renovation project for the university of New Mexico, the district court erred in concluding that the act does not confer a private right of action, because the plain language in Subsections C and D contemplate a private right of action in which an employer can be liable to an employee for unpaid wages and attorney fees, separate from the administrative scheme contained in Subsections A and B, and broadly interpreting the act to imply a private right of action under Subsections C and D would further the remedial purpose of the act, rather than frustrate it. Cates v. Mosher Enterprises, Inc., 2017-NMCA-063.