Court in N.M. certifies 8 year OT class due to “continuing violation”

New Mexico’s overtime statute, the New Mexico Minimum Wage Act (“NMMWA”) provides a three year limitations period for all claims brought under the statute. NMSA 1978 § 37-1-5 (2009). Thus, unlike the FLSA, a NMMWA claimant does not need to prove a willful violation to extend the limitations period from two years to three.

But there is another layer to the NMMWA’s statute of limitations.  The NMMWA also contains a provision which can significantly extend the applicability of the statute of limitations. “[A] civil action to enforce any provision of [the NMMWA] may encompass all violations that occurred as part of a continuing course of conduct regardless of the date on which they occurred.” NMSA 1978 §§ 37-1-5; 50-4-32. While caselaw interpreting this provision is sparse, that is changing.  At lease one federal district court in New Mexico has read § 50-4-32 to mean exactly what its plain language clearly states. In Olivo, Judge Black stated that “because the current version of § 50-4-32 of the Act provides that where a continuing course of conduct is involved, there is essentially no limitations period for claims [asserted under the NMMWA].” See Olivo v. Crawford Chevrolet, Inc., No. Civ. 10-782 BB/LFG (D. N.M. September 20, 2011). Moreover, in a recent case, Judge Vasquez certified a class of oilfield workers who were paid a salary from 2009 until 2017 – an eight year class.  In Felps v. Mewbourne Oil Co, Inc., No. 18-811 (D.N.M. Nov. 16, 2020), the plaintiff filed suit for unpaid overtime under the NMMWA.  The case was filed as a class action on behalf of Lease Operators or Pumpers who were paid a salary.  The plaintiff alleged that the company had continually denied its Lease Operators overtime pay from 2009 until 2017, and sought to certify a class during the entirety of this period based on the NMMWA’s continuing violation provision.  The Court rejected the Defendant’s argument that the three year provision should trump the continuing violation provision, finding that as long as the plaintiff timely filed his claim within the three year period, all violations that occurred as part of that course of conduct, regardless of the date on which they occurred, may be included in Plaintiff’s action. The Court further found that at the class certification stage, all the plaintiff was required to do was allege a continuing violation, rather than prove it.  As such, the court certified the following class: all of Defendants’ current and former Lease Operators who, in at least one workweek between June 19, 2009 and June 21, 2017, were paid a salary with no overtime and who worked for Defendants in New Mexico.

This is an important opinion because it is the first federal case to interpret the meaning of the continuing violation provision of the NMMWA with respect to class actions.  The result is not surprising, given the plain language of the NMMWA.  However, it provides a powerful tool to oilfield workers suing for their unpaid overtime.  If you have been denied overtime pay as an oilfield worker, speak with an experienced overtime attorney as soon as possible to learn of your legal rights.  Josh Borsellino represents oil and gas workers suing for their unpaid overtime. For a free consultation, call Josh at 817.908.9861 or 432.242.7118 or email him by clicking this link. 


Share This Post