Compliance Watch:
What are my overtime rights in New Mexico?

June 19th 2024

Overtime rules are in place to protect workers from exploitation and ensure they are fairly compensated for their labor. This article will guide you through overtime regulations within New Mexico, covering fundamental questions concerning mandatory overtime, eligibility for overtime compensation, exemption from overtime, and calculation of overtime pay. With a focus on common queries and legal considerations surrounding overtime, this article will also touch on penalties for not compensating workers for overtime, and how to handle non-compliance by employers. By the end of this guide, you’ll be equipped with the knowledge needed to navigate overtime compensation in New Mexico, ensuring that your work hours and efforts are justly rewarded.

This Article Covers

Understanding Overtime in New Mexico
Common Questions About Overtime in New Mexico 
Legal Working Hours in New Mexico
Overtime Eligibility in New Mexico 
    Overtime Payment Calculations in New Mexico
      Receiving Overtime Payment in New Mexico 
      Violations of Overtime Law in New Mexico

      Understanding Overtime in New Mexico

      Is overtime pay mandatory in New Mexico?

      Yes, in New Mexico, employers are required to pay overtime to all employees aged 18 or above, unless they are classed as exempt.

      Not all workers qualify for overtime; certain employees are exempt under the Fair Labor Standards Act (FLSA), including those in executive, administrative, and professional roles, and some commission-based sales positions. 

      More information on exemptions and exceptions from overtime can be found in the New Mexico Overtime Laws article.

      When do I qualify for overtime pay in New Mexico?

      Under the Fair Labor Standards Act, a workweek in New Mexico is defined as seven consecutive days during which employees are compensated at their hourly rate for up to 40 hours of work. Hours that exceed 40 within this period are considered overtime and must be paid at a rate of 1.5 times the regular hourly wage. There is no daily overtime in New Mexico; as per the FLSA, only hours over 40 in a workweek qualify for overtime pay.

      How much is overtime pay in New Mexico?

      In New Mexico, overtime is paid out at ‘time and a half’. This means that employees will earn 1.5 times their regular rate of pay when they work more than 40 hours in a seven-day period. With the state minimum wage set at $12 per hour, the overtime rate for minimum wage workers would be $18 per hour. Employees earn this increased rate for every hour worked beyond the standard 40-hour workweek.

      Which laws govern overtime in New Mexico?

      Both state and federal laws govern overtime in New Mexico. Under the FLSA:

      • Overtime pay is mandatory for any hours over 40 worked within a workweek.
      • The overtime rate is one-and-a-half times the employee’s regular pay rate.
      • There is no overtime pay requirement for working weekends, nights, or holidays unless these fall within the overtime hours.
      • The FLSA defines a workweek as 168 consecutive hours, or seven consecutive 24-hour periods, which can start on any day and at any hour as defined by the employer, allowing flexibility in scheduling.

      Unlike the FLSA, New Mexico’s law does not exempt certain motor carrier employees, including interstate commerce drivers of vehicles over 10,000 lbs GVWR, from overtime, potentially entitling them to overtime pay even if they are exempt under federal regulations. When state and federal laws contradict each other, the law that is more favorable to employees is applicable.

      Common Questions About Overtime in New Mexico

      Do employers have to pay overtime in New Mexico?

      Yes, according to the Fair Labor Standards Act (FLSA), employers with annual sales of at least $500,000 and those engaged in interstate commerce are obligated to pay overtime. As the definition of interstate commerce is broad, covering activities like phone calls, mail, and handling goods moving between states, very few businesses are exempt from FLSA overtime requirements.

      Can an employee refuse to work overtime in New Mexico?

      Mandatory overtime is legal in New Mexico, which means that employers can require employees to work overtime. If an employee refuses, they risk facing disciplinary actions, unless working overtime would violate the terms of a contract or collective bargaining agreement. Employees must, however, be paid 1.5 times their regular hourly wage for any hours worked beyond 40 in a week. 

      Can I take comp time instead of overtime pay in New Mexico?

      Yes, in New Mexico, public employers may offer compensatory time off (“comp time”) instead of monetary payment for overtime work. Comp time is calculated at one-and-a-half times the regular rate for every overtime hour worked. Public employees can accumulate up to 240 hours of comp time, equivalent to 160 hours of overtime work. Note that private-sector employees are not eligible for comp time under the FLSA, as such benefits are exclusive to the public sector.

      Can I get overtime pay in New Mexico without employer approval?

      In New Mexico, you qualify for overtime pay with or without employer approval. According to the Fair Labor Standards Act (FLSA), any work that is “not requested but suffered or permitted” counts as compensable time. Thus, if your employer is aware or should reasonably be aware of the work, they are required to compensate you. Note that although you have the right to be paid, working extra hours without prior authorization may result in disciplinary measures, including termination.

      Does New Mexico have double-time pay?

      There are no federal or state laws that require double-time pay for specific hours or days worked in New Mexico. Employers may set up double-time payment agreements if they wish, but there is no legal obligation to do so. However, employers must pay the ‘time-and-a-half’ overtime rate for hours worked beyond 40 in a week, which is mandatory for all non-exempt employees.

      What is working ‘off-the-clock’ in New Mexico?

      ‘Off-the-clock’ work refers to job duties performed without compensation. In New Mexico, some employers may fail to count activities such as working during meal breaks, pre-shift preparations, post-shift cleanup, and correcting errors, as ‘hours worked’, thereby evading overtime payments. It’s important to note that ‘off-the-clock’ work is illegal under federal laws, including the FLSA, which requires employees to be paid for all work performed. These federal provisions ensure that employees are not exploited, especially during periods that should count as overtime.

      What are common ways employers avoid paying overtime in New Mexico?

      To avoid exploitation, it is key for employees in New Mexico to understand the methods which allow employers to avoid properly compensating their workers. Common strategies used to prevent employees from receiving overtime pay include:

      • Clocking Out Early: Employees are sometimes told to clock out before they finish their tasks, or may be assigned work after hours without being paid.
      • Misclassifying Employees: Workers may be incorrectly classified either as independent contractors or as exempt from overtime due to their job roles, allowing employers to sidestep overtime regulations.
      • Averaging Hours Worked: Employers might manipulate work schedules to average hours over a pay period, such as having an employee work 48 hours one week and 32 hours the next, which can be misleadingly rounded over to 40-hour weeks.
      • ‘Off-the-Clock’ Work: Employees may be pressurized into carrying out tasks like setting up or closing down outside their paid hours, which violates New Mexico labor laws.

      Can you work seven days in a row in New Mexico?

      In New Mexico, there are no state or federal laws restricting the number of consecutive days an adult employee can work. Employees may legally work seven days in a row as long as they receive proper overtime compensation for any hours exceeding 40 in a workweek, per the Fair Labor Standards Act (FLSA). 

      The FLSA establishes a workweek as a fixed and regularly recurring period of 168 hours—seven consecutive 24-hour periods that can start on any day at any hour. This workweek definition does not prohibit working every day, provided overtime rules are followed. However, industry-specific agreements or union contracts may influence work schedules. Additionally, the FLSA limits the working hours for minors aged 14 and 15 to eight hours a day and 40 hours per week, with further restrictions on the number of hours when school is in session. For workers aged 16 and older, there are no restrictions on maximum working hours. 

      How many ten-hour days can you work in a row in New Mexico?

      In New Mexico, an adult can work any number of 10-hour days in a row. However, employers are required to pay overtime for any work over 40 hours in a workweek, regardless of the number of consecutive days worked. For minors, the FLSA sets specific restrictions: 14- and 15-year-olds can work only 3 hours on a school day, 18 hours in a school week, 8 hours on a non-school day, and up to 40 hours on a non-school week, generally between 7 a.m. and 7 p.m., extended to 9 p.m. from June 1 through Labor Day. There are no hour or day restrictions for workers aged 16 and older.

      What are full-time hours in New Mexico?

      Full-time employment, as defined by the Affordable Care Act (ACA), is 30 or more hours of work per week. The Fair Labor Standards Act (FLSA) does not determine how many hours qualify for full-time employment; these classifications are generally determined by the employer. 

      How many hours straight can you legally work in New Mexico?

      According to Mexico state law (NMSA § 50-4-30), employees cannot be required to work more than 16 hours within any 24-hour period unless they are firefighters, law enforcement officers, employees in a standby position, those working in emergencies, or farm or ranch hands whose roles necessitate longer hours. However, an employee may volunteer to work more than 16 hours in a day, as long as their employer complies with all applicable overtime requirements. Consequently, there is no cap on the number of hours an adult employee can legally work in New Mexico. 

      There are some notable exceptions. For example, truck drivers are restricted to 11 hours of driving within a 14-hour period, followed by a 10-hour rest. For minors under the age of 16, federal law limits working hours to 8 hours per day when school is not in session and 3 hours on school days. Other industries may also have specific regulations that limit daily working hours to ensure that safety and health standards are met.

      Is overtime after eight hours or 40 hours in New Mexico?

      In New Mexico, overtime pay is required only after an employee works more than 40 hours in a workweek, in accordance with both state law and the federal Fair Labor Standards Act (FLSA). There are no provisions for daily overtime in New Mexico or under the FLSA, meaning overtime is not mandated for working more than 8 hours in a single day unless stipulated by employment agreements or union contracts.

      Does working on the weekend qualify for overtime pay in New Mexico?

      No, working on weekends does not automatically qualify for overtime pay according to both state laws and the federal Fair Labor Standards Act (FLSA). Overtime compensation is determined based on a 40-hour workweek rather than the specific days worked. Therefore, weekend hours only contribute to overtime calculations if they extend the total worked hours beyond 40 in a week. 

      The FLSA defines a workweek as a fixed, recurring period of 168 hours, consisting of seven consecutive 24-hour periods that can start on any day and at any hour. This period does not need to align with the calendar week. 

      How many hours-off between shifts is required in New Mexico?

      New Mexico labor laws have not established a minimum number of hours-off between shifts for most adult workers, leaving it up to the employer, employment contracts or union agreements. However, certain industries have safety regulations requiring designated rest periods, such as pilots and long-haul truck drivers. For minors, there are stricter limits on working hours: 14 and 15-year-olds cannot work more than three hours on a school day or eight hours on a non-school day, with a total limit of 18 hours per week when school is in session. They also must not work more than four hours continuously without a break.

      What does ‘hours-worked’ include in New Mexico?

      The definition of “hours worked” in New Mexico is outlined by the FLSA, not state law. “Hours worked” simply means compensable work time, which, according to the FLSA, includes all hours an employee is “suffered or permitted to work”, whether requested by their employer or not. Under the FLSA: 

      Waiting Time:

      • If an employee is waiting while on duty, it’s counted as work time.
      • If waiting time is off-duty and the employee is free to leave, it may not be considered work time.

      On-Call Time:

      • Time spent on the employer’s premises counts as hours worked if the employee is unable to use that time effectively for their own purposes.
      • On-call time at home, with flexibility to pursue personal activities is not compensable.

      Rest and Meal Periods:

      • Short breaks (usually 20 minutes or less) are compensable.
      • Meal periods (usually 30 minutes or more) where the employee is completely relieved of duty are not compensable.

      Sleeping Time:

      • Less than 24-hour duty: If allowed to sleep during slow periods, it’s usually compensable.
      • 24-hour or more duty: Agreed sleeping periods may be excluded if the employee can get at least 5 hours of uninterrupted sleep.

      Travel Time:

      • Normal home-to-work travel is not compensable.
      • Travel during the workday (like between job sites) is compensable.
      • Special one-day assignments in another city are compensable, excluding usual commute time.
      • Travel requiring an overnight stay is compensable during normal working hours and corresponding hours on nonworking days.

      What is the most hours a salaried employee can work in New Mexico?

      In New Mexico, there is no cap on the number of hours that salaried employees can work per week under the federal Fair Labor Standards Act (FLSA) or any state laws. Non-exempt salaried employees are entitled to overtime pay at 1.5 times their regular rate for hours worked beyond 40 in a week, unless they qualify for an exemption. There is, however, a state law that restricts working more than 16 hours within any 24-hour period. This law applies to all employees, including salaried ones, unless they are firefighters, law enforcement officers, employees in a standby position, those working in emergencies, or farm or ranch hands whose roles necessitate longer hours.

      What is the maximum number of hours an hourly employee can work in New Mexico?

      In New Mexico, there is no limit on the number of hours an hourly employee can work per week. However, employers must comply with the Fair Labor Standards Act (FLSA), which requires that any hours worked over 40 in a workweek be paid at a rate of 1.5 times the employee’s regular pay rate.

      The only restriction related to hours worked comes from a specific state law (NMSA § 50-4-30), which prohibits requiring any employee to work more than 16 hours within any 24-hour period, with certain exceptions for specific types of employees such as firefighters, law enforcement officers, employees in standby positions, those working in emergencies, or farm or ranch hands.

      Overtime Eligibility in New Mexico?

      Who is eligible for overtime pay in New Mexico?

      Overtime pay is mandatory in New Mexico for non-exempt employees who earn less than $684 per week or $35,568 annually and work in non-exempt industries. Overtime eligibility is determined by the federal Fair Labor Standards Act (FLSA) and depends largely on job duties and industry type. While hourly workers are commonly non-exempt, some salaried employees who do not meet specific FLSA exemption criteria based on their executive, administrative, professional roles, or certain commission-based sales positions, may also be entitled to overtime. 

      Who is exempt from overtime pay in New Mexico?

      To qualify for exemption from overtime under the FLSA, employees must satisfy certain criteria related to their job duties and earn at least $684 per week:

      • Executive Exemption: Must manage the enterprise or a recognized department, regularly direct at least two full-time employees, and have significant input on hiring decisions.
      • Administrative Exemption: Must perform non-manual work related to business operations, exercising discretion and independent judgment on significant matters.
      • Professional Exemption: For learned professionals, work must require advanced knowledge in a field of science or learning acquired through specialized education. Creative professionals must demonstrate talent in artistic or creative endeavors.
      • Computer Employee Exemption: Must work in specific computer-related roles, earning at least $684 per week or $27.63 per hour, performing advanced tasks such as systems analysis or program development.
      • Outside Sales Exemption: Must primarily engage in making sales or obtaining contracts, working away from the employer’s business location.

      Additionally, highly compensated employees earning at least $107,432 annually, including $684 per week salary, are exempt if they perform any of the exempt duties listed above.

      Non-exempt blue-collar workers and first responders such as police, firefighters, and paramedics are entitled to overtime pay regardless of pay level due to the nature of their work.

      Under New Mexico state law, individuals are also exempt if they work for government entities, volunteer for non-profit organizations, or are G.I. Bill trainees, seasonal workers with specific certificates, agricultural workers, and employees of certain charitable organizations.

      Can salaried employees get overtime pay in New Mexico?

      Yes, salaried employees may qualify for overtime pay depending on their FLSA classification. Non-exempt salaried employees, who do not fulfill the exemption criteria for executive, administrative, professional, computer, or outside sales roles, are eligible for overtime at 1.5 times their regular pay rate for hours worked beyond 40 in a week. However, those classified as exempt, typically due to their job duties and a salary above $684 per week, are not eligible for overtime, regardless of hours worked. Exceptions include roles like farm workers and part-time cotton ginners. 

      Overtime Payment Calculations in New Mexico

      What is my regular rate of pay in New Mexico?

      The regular rate of pay is what an employee earns per hour, and it must at least match the minimum wage in New Mexico. Calculating this rate is straightforward for hourly employees since it their hourly rate, whereas it’s more complex for other employment types:

      Salaried employees:

      1. Multiply the monthly salary by 12 to find the annual salary.
      2. Divide this annual salary by 52 to get the weekly salary.
      3. Divide the weekly salary by the standard 40-hour workweek to find the regular hourly rate.

      Piecework or commission-based employees (three methods):

      1. Use the piece rate or commission rate directly.
      2. Divide total earnings for the week by the total hours worked.
      3. For group work, calculate the group rate by dividing the total pieces completed by the number of group members, then multiply this rate by the hours each individual worked to find their rate.

      How do you calculate overtime in New Mexico?

      In New Mexico, overtime pay is calculated at one and one-half times the standard pay rate, often referred to as ‘time and a half.’ Non-exempt employees qualify for this overtime rate for any hours worked beyond 40 in a workweek.

      To calculate an employee’s overtime pay, follow these steps:

      1. Determine the employee’s regular rate of pay.
      2. Multiply this rate by 1.5 to find the hourly overtime rate.
      3. Multiply the hourly overtime rate by the total number of overtime hours worked to calculate the total overtime compensation due to the employee.

      How is overtime taxed in New Mexico?

      The amount of tax you pay is determined by your tax bracket, which varies depending on your taxable income and filing status.

      Overtime earnings are taxed in the same manner as regular wages. However, if overtime pay significantly increases your overall income, it could push you into a higher tax bracket. This means your total income would be subject to a higher tax rate, not just the overtime.

      It’s important to understand that moving into a higher tax bracket would only apply to the pay period in which the additional income was earned.

      Receiving Overtime Payment in New Mexico

      How is overtime paid in New Mexico?

      In New Mexico, overtime pay is issued using the same method as regular wages, which can vary based on employer practices or employee preferences. Typically, this involves payment via direct deposit or physical paychecks for the relevant pay period. New Mexico law requires that employers provide employees with detailed pay stubs each pay period. These statements, which can be digital or paper, must include details, such as hours worked, pay rates, gross and net earnings, and deductions. This transparency helps ensure employees fully understand their compensation and deductions, and they must be able to easily access, review, and print their pay stubs if necessary.

      When do I receive my overtime paycheck in New Mexico?

      Under federal FLSA regulations, overtime compensation must be paid on the regular payday for the period in which it was earned. In New Mexico, the law requires employers to set and maintain consistent pay periods, mandating that employees are paid at least bi-monthly and that no more than 16 days elapse between these pay periods. The state allows for monthly payments for executive, administrative, and professional staff, provided there is a mutual agreement in writing to alter the payroll period.

      Violations of Overtime Law in New Mexico

      What if my employer refuses to pay me overtime in New Mexico?

      If your employer in New Mexico refuses to pay you the overtime you’ve earned, you have several options to enforce your rights:

      1. Direct Communication: First, try to resolve the issue directly with your employer. It might be a misunderstanding or error that can be corrected internally.
      2. Wage Claim: If direct communication doesn’t resolve the issue, you can file a wage claim with the New Mexico Department of Workforce Solutions. This department handles disputes regarding unpaid wages, including overtime.
      3. U.S. Department of Labor: You can also file a complaint with the U.S. Department of Labor’s Wage and Hour Division, especially if your case involves violations of the Fair Labor Standards Act (FLSA).

      What is the penalty for failing to pay overtime in New Mexico?

      If you’re in New Mexico and haven’t been paid the correct overtime wages, you’re entitled to seek financial compensation for back pay by filing an unpaid wage claim against your employer. Employers who willfully or repeatedly violate federal overtime payment laws face civil penalties up to $1,000 per violation. More severe intentional breaches can lead to criminal charges, with fines up to $10,000 and possible imprisonment for repeat offenders. In court, employers may also be ordered to pay twice the owed wages plus any reasonable attorney fees and costs incurred by the employee.

      How can I file a wage claim for overtime in New Mexico?

      Employees can file a wage claim with the New Mexico Department of Workforce Solutions, or, if they can’t afford legal representation, with the Labor and Industrial Division of the New Mexico Department of Labor. To initiate a claim, an employee must first request the unpaid wages from their employer and then submit a Wage Claim Form. The Division may conduct a hearing or file a lawsuit on the employee’s behalf, potentially leading to a court awarding double the owed wages if the case involves unpaid minimum wage or overtime.

      If financially feasible, employees are advised to hire a private attorney and file a claim directly in court, either at a Magistrate or Metropolitan Court, where they may also recover double damages, legal fees, and other costs. The statute of limitations for overtime claims is one year, while other wage-and-hour claims may fall under a general four-year statute of limitations, though this can vary and should be confirmed with a lawyer.

      Can employers retaliate against employees for making a wage claim in New Mexico?

      In New Mexico, both state and federal laws protect employees from employer retaliation when they exercise their legal rights, such as filing a wage claim or seeking workers’ compensation benefits. It is illegal for employers to take adverse actions, like termination or altering employment conditions, against employees for asserting these rights. If an employer retaliates, the affected employee has the right to pursue legal action, which can result in significant penalties against the employer and may entitle the employee to damages.

      Important Cautionary Note

      This content is provided for informational purposes only. While we make every effort to ensure the accuracy of the information presented, we cannot guarantee that it is free of errors or omissions. Users are advised to independently verify any critical information and should not solely rely on the content provided.