HB 6
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AN ACT
RELATING TO MINIMUM WAGE; REQUIRING THAT PROJECTS UNDERTAKEN
BY A MUNICIPALITY OR COUNTY THROUGH THE ISSUANCE OF
INDUSTRIAL REVENUE BONDS PAY THE PREVAILING WAGE AND COMPLY
WITH THE PROVISIONS OF SECTION 13-4-11 NMSA 1978 (BEING LAWS
1965, CHAPTER 35, SECTION 1, AS AMENDED).
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 13-4-11 NMSA 1978 (being Laws 1965,
Chapter 35, Section 1, as amended) is amended to read:
"13-4-11. PREVAILING WAGE AND BENEFIT RATES
DETERMINED--MINIMUM WAGES AND FRINGE BENEFITS ON PUBLIC
WORKS--WEEKLY PAYMENT--WITHHOLDING FUNDS--INDUSTRIAL REVENUE
BOND PROJECTS.--
A. Every contract or project in excess of sixty
thousand dollars ($60,000) that the state or any political
subdivision thereof is a party to for construction,
alteration, demolition or repair or any combination of these,
including painting and decorating, of public buildings,
public works or public roads of the state and that requires
or involves the employment of mechanics, laborers or both
shall contain a provision stating the minimum wages and
fringe benefits to be paid to various classifications of
laborers and mechanics, which shall be based upon the wages
and benefits that will be determined by the director to be HB 6
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prevailing for the corresponding classifications of laborers
and mechanics employed on contract work of a similar nature
in the state or locality, and every contract or project shall
contain a stipulation that the contractor, subcontractor,
employer or a person acting as a contractor shall pay all
mechanics and laborers employed on the site of the project,
unconditionally and not less often than once a week and
without subsequent unlawful deduction or rebate on any
account, the full amounts accrued at time of payment computed
at wage rates and fringe benefit rates not less than those
determined pursuant to Subsection B of this section to be the
prevailing wage rates and prevailing fringe benefit rates
issued for the project.
B. Annually, no later than October 1, the director
shall determine prevailing wage rates and prevailing fringe
benefit rates to take effect the next January 1 for
respective classifications of laborers and mechanics employed
on public works projects at the same wage rates and fringe
benefit rates used in collective bargaining agreements
between labor organizations and their signatory employers
that govern predominantly similar classifications of laborers
and mechanics for the locality of the public works project
and the crafts involved; provided that:
(1) if the prevailing wage rates and
prevailing fringe benefit rates cannot reasonably and fairly HB 6
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be determined in a locality because no collective bargaining
agreements exist, the director shall determine the prevailing
wage rates and prevailing fringe benefit rates for the same
or most similar classification of laborer or mechanic in the
nearest and most similar neighboring locality in which
collective bargaining agreements exist;
(2) the director shall give due regard to
information obtained during the director's determination of
the prevailing wage rates and the prevailing fringe benefit
rates made pursuant to this subsection;
(3) any interested person shall have the
right to submit to the director written data, personal
opinions and arguments supporting changes to the prevailing
wage rate and prevailing fringe benefit rate determination;
(4) prevailing wage rates and prevailing
fringe benefit rates determined pursuant to the provisions of
this section shall be compiled as official records and kept
on file in the director's office, and the records shall be
updated in accordance with the applicable rates used in
subsequent collective bargaining agreements;
(5) an appeal of the prevailing wage
determination pursuant to the provisions of this section
shall not have the effect of creating a stay of the
implementation of the rate; and
(6) during the pendency of an appeal, HB 6
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whether before the labor and industrial commission or in a
court, a court of competent jurisdiction may grant a stay of
the implementation of the wage rate based on a motion made by
a party or an interested person, provided the court gives an
opportunity for any interested person to be heard on the
matter.
C. The prevailing wage rates and prevailing fringe
benefit rates to be paid shall be posted by the contractor or
person acting as a contractor in a prominent and easily
accessible place at the site of the work; provided that there
shall be withheld from the contractor, subcontractor,
employer or a person acting as a contractor so much of
accrued payments as may be considered necessary by the
director or contracting officer of the state or political
subdivision to pay to laborers and mechanics employed on the
project the difference between the prevailing wage rates and
prevailing fringe benefit rates required by the director to
be paid to laborers and mechanics on the work and the wage
rates and fringe benefit rates received by the laborers and
mechanics and not refunded to the contractor, subcontractor,
employer or a person acting as a contractor or the
contractor's, subcontractor's, employer's or person's agents.
D. Certified weekly payroll records of a
contracting agency are subject to inspection pursuant to the
Inspection of Public Records Act; provided that the request HB 6
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shall be fulfilled within twenty days of receipt of the
written request. Certified weekly payroll records are
subject to record retention requirements applicable to
payroll records of a state agency.
E. Notwithstanding any other provision of law
applicable to public works contracts or agreements, the
director may, with cause:
(1) issue investigative or hearing subpoenas
for the production of documents or witnesses pertaining to
public works prevailing wage projects; and
(2) attach and prohibit the release of any
assurance of payment required under Section 13-4-18 NMSA 1978
for a reasonable period of time beyond the time limits
specified in that section until the director satisfactorily
resolves any probable cause to believe a violation of the
Public Works Minimum Wage Act or its implementing rules has
taken place.
F. A person may file with the director a complaint
that a contractor, subcontractor, employer or person acting
as a contractor on the project has failed to pay the person
wages or fringe benefits at the rates required by the Public
Works Minimum Wage Act. Within thirty days after the filing
of the complaint, either party may request in writing a
mediation to resolve the complaint.
G. The director shall, within thirty days of the HB 6
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filing of the complaint, commence an investigation of the
allegations contained in the complaint. The director shall,
within seventy-five days after the completion of mediation or
if no mediation is requested, within seventy-five days after
the filing of the complaint, make a determination supported
by findings of fact and conclusions of law whether there has
been an underpayment of wages or fringe benefits or other
violation of the Public Works Minimum Wage Act; provided that
if the complaint is of a continuing or significantly complex
nature or involves multiple projects or job sites, the
director may extend the time in which to make a determination
by up to six months by providing written notice and an
explanation to all parties of the need to extend the time.
Prior to issuing a determination, the director shall provide
the contractor, subcontractor, employer or other person
against whom the complaint has been filed with an opportunity
to respond to the complaint and provide any exculpatory
evidence.
H. If the director determines that there has been
an underpayment of wages or fringe benefits or a violation of
the Public Works Minimum Wage Act, the director shall, in the
absence of a voluntary resolution by the parties and within
thirty days of making that determination, order the
withholding of accrued payments as provided in Subsection C
of this section. HB 6
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I. The director shall issue rules necessary to
administer and accomplish the purposes of the Public Works
Minimum Wage Act.
J. For projects undertaken under the auspices of a
municipality or county through the issuance of an industrial
revenue bond, the contractor, subcontractor, employer or
person acting as a contractor shall pay the prevailing wage
and comply with the provisions of this section."