SUSANA MARTINEZ GOVERNOR

CELINA BUSSEY SECRETARY

JOHN SANCHEZ LT. GOVERNOR

STATE OF NEW MEXICO DEPARTMENT OF WORKFORCE SOLUTIONS

401 Broadway, NE PO Box 1928 Albuquerque, NM 87103 (505) 841-8405/ FAX (505) 841-8491

February 28, 2014 {Name} {Insert address here} {City, State, Zip}

Dear Sir or Madame: The Labor Relations Division of the New Mexico Department of Workforce Solution is responsible for enforcing the state Minimum Wage Act, [50-4-20 NMSA 1978]. Based on inquiries received in the past year, the Division wishes to clarify the operation of certain specialized exemptions to the Minimum Wage Act for agricultural workers. First, there is no generalized exemption to minimum wage for agricultural workers. The Act states that an employer shall pay an employee the minimum wage rate of $7.50 an hour as of January 1, 2009. Although exceptions exist, the majority of the farmworker employees fall within the state minimum wage rate and should be paid an average of at least $7.50/hour. The Minimum Wage Act exempts any employee employed in agriculture if the employee is employed by an employer who did not, during any calendar quarter during the preceding calendar year, use more than five hundred man-days of agriculture labor, or if the employee: 1) is employed as a hand-harvest laborer and is paid on a piece-rate basis in an operation that has been, and is customarily and generally recognized as having been, paid on a piece-rate basis in the region of employment; 2) commutes daily from the employee's permanent residence to the farm on which the employee is so employed; and 3) has been employed in agriculture less than thirteen weeks during the preceding calendar year. NMSA 1978, 50-4-21(C)(12). Thus, 50-4-21(C)(12)(a) exempts an employer who did not use more 500 man-days of agricultural labor during any calendar quarter during the preceding year from paying $7.50/ hour. By its terms, this exception applies to smaller farm employers with few workers. It does not, however, apply to those larger farm employers that exceed the 500 man-days requirement. For those employers the higher of the federal or state minimum wage would apply. In other words, such employers must pay their employees the state minimum wage of $7.50/hour. Similarly, employers asserting that they fall under 50-4-21(C)(12)(c) must establish that they meeting all of the statutory criteria for their employees to be exempt from state minimum wage. Keep in mind, total cumulative employment during the preceding calendar year is reviewed for the thirteen week requirement, not just work for the current employer.

AN EQUAL OPPORTUNITY EMPLOYER

Finally, employers should be reminded that employees who are transported to the fields and then not allowed to begin work are entitled to be paid the state minimum wage of $7.50/hour for the entire time they are present at the work site. The Department of Workforce Solutions may conduct random audits to assess whether employers are in compliance with the Minimum Wage Act. Please let me know if you have any questions. Regards,

Jason Dean Division Director Labor Relations Division New Mexico Department of Workforce Solutions

AN EQUAL OPPORTUNITY EMPLOYER