TITLE 11 LABOR
AND WORKERS COMPENSATION
CHAPTER 6 DAY
LABORERS
PART 2 DAY
LABOR SERVICE AGENCIES AND THIRD PARTY EMPLOYERS DUTIES
11.6.2.1 ISSUING
AGENCY: New Mexico Department of Workforce Solutions,
Labor Relations Division.
[11.6.2.1 NMAC - N,
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11.6.2.2 SCOPE: All
day labor and third party employers in New Mexico.
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11.6.2.3 STATUTORY
AUTHORITY: Section 50-15-1 to 50-15-7 NMSA 1978.
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11.6.2.4 DURATION:
Permanent.
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11.6.2.5 EFFECTIVE
DATE: December 15, 2008, unless a later date is
cited at the end of a section.
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11.6.2.6 OBJECTIVE: The
objective of this rule is to establish regulations necessary for the
enforcement of the Day Laborer Act.
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11.6.2.7 DEFINITIONS:
[RESERVED]
11.6.2.8 DUTIES
APPLICABLE TO DAY LABOR SERVICE AGENCIES AND THIRD-PARTY EMPLOYERS: A day
labor service agency and third-party employer shall:
A. compensate a day laborer for all hours worked or
otherwise due and owed to the day laborer;
B. compensate day laborers for hours worked by providing or
making available commonly accepted payment instruments that are payable in
cash, on demand, at a financial institution;
C. before or at the time of payment of wages, provide each
day laborer with an itemized statement of payment with the laborer’s name, the
amount of time worked, the rate of pay and detail regarding each deduction made
from wages, which shall include no less than the purpose of the deduction and
the amount of the deduction;
D. not allow any deductions made other than those required
by federal or state law to reduce a day laborer’s wages below the federal
minimum wage for the hours worked;
E. maintain true and accurate records of the day laborers
employed and of the hours worked and wages paid to the day laborers for at
least one year after the entry of the record; such records shall be kept as
provided for herein and shall be open at all reasonable hours to the inspection
of the director of the department or his or her agents.
[11.6.2.8 NMAC - N,
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11.6.2.9 DUTIES
APPLICABLE TO DAY LABOR SERVICE AGENCIES ONLY:
A. A day labor service agency shall not restrict the right
of a day laborer to accept a permanent position with a third-party employer to
whom the day laborer has been referred for work or otherwise restrict the right
of a third-party employer to offer employment to a day laborer.
B. A day labor service agency shall keep the official notice
of the Day Laborer Act, furnished by the department of workforce solutions
without charge, posted in a conspicuous place on or about the premises where
the DLSA is hiring, registering or otherwise offering employment or payment to
any day laborer seeking employment. A
day labor service agency shall also provide an 8.5 x 11 size copy of the
official notice of the Day Labor Act, provided by the department without
charge, to each day laborer with each payment statement.
C. A day labor service agency may collect a reasonable
placement fee from a third-party employer.
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11.6.2.10 CHECK
CASHING SERVICES; NOTICES; WAIVERS; PENALTIES:
A. If a day labor service agency provides a check cashing
service, is a check cashing service, or allows a check cashing service to
operate on its premises, it cannot charge a day laborer an amount in excess of
two dollars ($ 2.00) for cashing a check or payment instrument that is issued
by the agency.
B. A day labor service agency or a check cashing service
that is operating within the office of a day labor service agency shall post a
notice clearly visible in the area where it cashes checks or payment
instruments, that clearly states limitations on the fee amount and its fee for
cashing a check or payment instrument.
C. A day labor service agency or a check cashing service
operating on the premises of a day labor service agency shall not charge any
fees for cashing a check or payment instrument unless the day laborer is given
the option of being paid with a check or payment instrument that is payable
without a fee at a local financial institution and the day laborer voluntarily
chooses to cash the check with the day labor service agency or at a check
cashing service operating on the premises of a day labor service agency.
(1) If the day laborer elects to cash the
check with the day labor service agency or a check cashing service operating on
the premises of a day labor service agency, the day labor service agency must
have the day laborer voluntarily sign a waiver in plain language. When a day laborer is limited English
proficient, the, the day labor service agency is responsible for providing a
waiver that is translated into the day laborer’s primary language, indicating
that the day laborer is aware they have the right to be paid with a payment
instrument that can be cashed at a bank or other local financial institution
free of charge and they have voluntarily elected to cash their check with the
day labor service agency or check cashing service. This waiver must be signed each time the day
laborer cashes a check with the day labor service agency or with a check
cashing service operating on the premises of a day labor services agency.
(2) Waiver(s) must be kept on file for one (1)
year from the date signed and shall be open at all reasonable hours to the
inspection of the director of the department or his or her agents.
D. The day labor service agency must provide current and
accurate information with the name, address and hours of a local financial
institution where checks can be cashed without a fee, on the notice form
provided by the department. This
information shall be posted in an area where payment is made or checks are
cashed, and shall be clearly visible and easily readable.
E. The notices required by this section shall be posted in
English, Spanish, and any other written language where a high percentage of the
workers speak that language, and will be provided by the department free of
charge. The day labor service agency
shall be responsible for posting the signs, completing blank sections with
accurate information and ensuring the accuracy of any information they provide
on the sign. In areas where a day labor service agency employs Navajo workers
and the check cashing service cashes checks of Navajo workers, notices shall be
provided by the department and posted in Navajo.
F. Failure of the day labor service agency to post notices
or provide current and accurate check cashing information or local financial
institution information as provided herein is a violation of these regulations
and the Day Labor Act.
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HISTORY OF 11.6.2 NMAC:
[RESERVED]