The Permian Basin extends from Midland into Eastern New Mexico. As a result, thousands of oilfield workers perform work in New Mexico every day. What most of them probably do not realize is that New Mexico has its own overtime statute that in many instances provide more protections than federal overtime law. For example, while under the FLSA the default statute of limitations is two years, which can only be extended to three years upon a showing of a willful violation of the law, the 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. The NMMWA also contains a provision which can dramatically extend 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 essentially nil, 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).
Additionally, while the FLSA allows liquidated or double damages, as long as the defendant cannot establish a good faith defense, the NMMWA provides for treble damages – an employer who violates the law “shall be liable to the employee affected in the amount of [his] unpaid or underpaid minimum wages plus interest, and in an additional amount equal to twice the unpaid or underpaid wages.” N.M. STAT. ANN. § 50-4-26(C) (2013); see also Rivera v. McCoy Corp., 240 F.Supp.3d 1150 (D.N.M. 2017) (NMMWA overtime claimant is entitled to treble damages). Rivera v. McCoy Corp., 240 F.Supp.3d 1150, 1161 (D.N.M. 2017) (awarding the claimant $6,411.60 in unpaid overtime wages; as well as $12,823.20 in treble damages). Thus, if a claimant were owed $1,000 in overtime pay, he would receive an additional $1,000 under the FLSA (assuming the employer did not show it acted in good faith), but the same worker would receive an additional $2,000 under the NMMWA. So a worker may receive 33% more under the NMMWA than under the FLSA.
Lastly, and most importantly, the fluctuating workweek is illegal in New Mexico. The FWW is a method of calculating damages that uses half-time, rather than time and a half, to calculate unpaid overtime. Unfortunately, the FWW is acceptable in most instances under the FLSA. But the FWW is illegal under the New Mexico overtime statute. See Dep’t. of Labor v. Echostar Commc’n Corp., 2006-NMCA-047, ¶ 7, 139 N.M. 493, 134 P.3d 780, 782 (N.M. Ct. App. 2006) (holding that calculating overtime based on a FWW is inconsistent with NMMWA Section 50-4-22(C)); see also Andrew v. Schumberger Tech. Co., 808 F.Supp.2d 1288, 1290-91 (D.N.M. 2011) (stating that “[b]ased on [Echostar], however, New Mexico no longer permits employers and employees in New Mexico to agree to use the FWW method to calculate the payment of wages for overtime hours.”). This makes a dramatic difference in calculating overtime pay. Assume an oilfield worker in New Mexico is paid $25/hour. Under the federal overtime statute, using the FWW, his unpaid overtime would be half of that, or $12.50. But under the NMMWA, his unpaid overtime would be one-and-a-half times that, or $75. If the worker was not paid for 100 hours of work, under the FLSA he would be owed $1,250. But under the NMMWA he would be owed $7,500.
Because of these substantial differences between the federal and New Mexico overtime law, even relatively small periods of unpaid overtime in New Mexico may be worth pursuing. If you work or within the past three years have worked in the oilfields in New Mexico, you should talk to an experienced overtime attorney as soon as possible. Josh Borsellino represents oilfield workers and other manual laborers on claims for overtime pay. If you have questions about overtime pay, call Josh today at 817.908.9861 or email him by clicking this link for a free evaluation of your overtime matter.