TITLE 11 LABOR
AND WORKERS COMPENSATION
CHAPTER 6 DAY
LABORERS
PART 1 GENERAL
PROVISIONS
11.6.1.1 ISSUING
AGENCY: New Mexico Department of Workforce Solutions,
Labor Relations Division.
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11.6.1.2 SCOPE: All
day labor employers in New Mexico.
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11.6.1.3 STATUTORY
AUTHORITY: Section 50-15-1 to 50-15-7 NMSA 1978.
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11.6.1.4 DURATION:
Permanent.
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11.6.1.5 EFFECTIVE
DATE: December 15, 2008, unless a later date is
cited at the end of a section.
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11.6.1.6 OBJECTIVE: The
objective of this rule is to establish regulations necessary for the
enforcement of the Day Laborer Act.
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11.6.1.7 DEFINITIONS:
A. "Check cashing service" means a business that
offers to cash checks or other payment instruments or that advertises that it
cashes checks or other payment instruments.
B. "Day labor" means employment that is under a
contract between a day labor service agency and a third-party employer, that is
occasional, irregular or for a limited time period.
C. "Day labor service agency" means an entity,
including a labor broker or labor pool, that provides day laborers to
third-party employers and that charges the third-party employer for the service
of providing day laborers for employment offered by the employer. The
provisions of the Workers' Compensation Act [52-1-1 et. seq. NMSA 1978] shall
apply to day labor service agencies.
D. "Day laborer" means a person who contracts for
day labor employment with a day labor service agency.
E. "Department" means the New Mexico department
of workforce solutions.
F. “High percentage of workers” means 10% or more of the
day laborers that a day labor service agency employs in a calendar year.
G. “Hours worked” means time a day laborer spent actually
working. Time of work begins when the employer begins to control the day
laborers time. Time spent by a day laborer in travel as part of his/her
principal activity, such as travel from job site to job site during the
workday, is work time and must be counted as hours worked, consistent with
existing wage and hour law. A day laborer who is required to remain waiting on
call on the day labor service agency’s premises or on the third-party
employer's premises is working while waiting, consistent with existing wage and
hour law. Further, any preparation time required by the day labor service
agency or third-party employer at a day labor service agency or an employer's
premises or at a prescribed work place will be counted as hours worked,
consistent with existing wage and hour law.
H. “Limited English proficient” means a day laborer who does
not speak English as their primary language and who has a limited ability to
read, speak, write or understand English.
I. "Payment instrument" means a paycheck,
payment voucher or other negotiable instrument from an employer provided to an
employee to pay for hours worked.
J. "Third-party employer" means a person or
entity that contracts with a day labor service agency for the employment of day
laborers.
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11.6.1.8 EXEMPT
EMPLOYERS: The following agencies that provide employees
on a short-term or otherwise temporary basis are exempted from the provisions
of the Day Labor Act and these regulations:
A. business entities registered as farm labor contractors;
B. temporary services employment agencies where advanced
applications, a screening process and job interviews are required;
C. a labor union hiring hall; and
D. a labor bureau or employment office operated by a
business entity for the sole purpose of employing a person for its own use.
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11.6.1.9 TIME
FRAMES FOR PAYMENT:
A. Where day labor employment lasts less than one week,
wages shall be paid at the end of each workday or sooner if requested by the
day laborer.
B. Where day labor employment lasts more than a week, wages
shall be paid at the end of each workweek or sooner if requested by the day
laborer.
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HISTORY OF 11.6.1 NMAC:
[RESERVED]