Frequently Asked Questions about Employment Law

Answers to Commonly Asked Questions by Employees

At Buchanan Law Firm, LLC we bring more than 20 years of employment law experience to men and women throughout New Mexico. In our decades handling employment disputes, we have encountered a number of the same questions again and again. Here are some of those concerns:

Q: I am not a legal citizen of the United States. Am I still entitled to recover unpaid overtime?

A: Yes. Immigration status has no bearing on the right to file a claim for unpaid overtime.

Q: Can undocumented workers recover for discrimination?

A: As a general rule, yes. There’s no requirement that you have a green card or visa of any type to file a claim for discrimination in the workplace.

Q: My employer only pays me in cash. Can I still pursue a claim for unpaid overtime or minimum wage compensation?

A: Yes. There’s no requirement that you have written pay stubs to document your right to overtime you’re your employer has the legal responsibility for maintaining all pay records. If you have no pay stubs and did not sign a receipt for your pay, it will be extremely difficult for your employer to challenge your assertions about how much you were paid. As a practical matter, employees typically win in those types of situations.

Q: What is my hourly rate?

A: Your employer is required to give you a written statement showing you your hourly pay rate. The employer must sign this document and is required to keep it for 6 years. If you do not receive pay based on an hourly rate, your regular rate must be converted into an hourly rate, called a regular rate of pay. If there is no clear understanding about what your hourly rate of pay is, your regular rate of pay will be calculated according to both New Mexico and federal regulations.

Q: What am I entitled to for an overtime rate if I am paid a salary?

A: Under both state and federal law, the overtime rate is one and one-half times your regular rate of pay per hour. Employees must be paid overtime unless they are “exempt,” and getting paid a salary alone does not make you “exempt” from overtime. For example, if you work 6 days a week, ten hours a day, and earn $600 per week, your overtime rate of pay is calculated as follows:

• Weekly Pay = $600 ÷ 60 hours per week = $10 per hour
• Overtime rate = $10 (regular rate) × 1.5 = $15.00 per hour
• Total pay due = $400 (40 x $10) + $300 (20 x $15) = $700

These calculations can get complicated if your hours fluctuate each week, but an experienced employment attorney can help.

Q: How do I prove the amount of regular and overtime hours I worked?

A: Employers are required to keep accurate records of their employees’ hours worked. If they fail to do so, the employee’s testimony can be enough to prove regular hours and/or overtime worked. The burden then shifts to the employer to show that the actual number of hours the particular employee worked during the period in question was different. Employers are required by law to keep accurate and complete records of the exact work hours of all nonexempt employees, and these records are required to be contemporaneous. They must be maintained on an ongoing basis; an employer may not reconstruct clocked hour later after the fact.

Q: Is it my responsibility to report overtime to my employer?

A: Under both state and federal law, employers are responsible for documenting the work hours and pay of all employees, and must keep accurate and complete records and to keep them. Employees who do not report their overtime work to their employer are still entitled to the overtime wages earned.

If you are paid according to a piece rate, your regular rate is calculated by dividing the total weekly earnings by the total hours you worked. For any work in excess of 40 hours, you are entitled to overtime at one and one half times your regular hourly rate. If you are a salaried worker, your regular pay rate is calculated by dividing your salary by the number of hours for which you were compensated. For any work in excess of 40 hours, you are entitled to overtime at one and one half times your regular hourly rate.

Q: What is an exempt or nonexempt employee?

A: Under federal law, certain employees are considered exempt employees, which means they are not entitled to minimum wage and overtime pay.

Q: My employer says that I am an independent contractor. Does that mean that I am one?

A: No. There are specific criteria for determining whether you are an employee or an independent contractor. If you meet the criteria, you will be considered an employee, regardless of what your employer alleges. Contact our offices if you have questions about whether you are an employee or an independent contractor.

Q: Is there a time limit to filing an overtime claim?

A: Yes. There is a statute of limitations on overtime claims. Under federal law, you must file an overtime claim within two years of your employer’s violation. However, if the employer’s violation is proven to be willful, this statute of limitations period is extended to three years. An employer’s violation is willful if the employer knew that the conduct violated the law, showed a reckless disregard as to whether its behavior violated the law, or has a prior history of violating the law. Under New Mexico law, the deadline to file wage claims is three years from the date of the last violation, but if there is a violation within the prior three years, the employee may recover all unpaid wages back to the beginning of their employment.

Q: Does filing an overtime complaint with the New Mexico Department of Workforce Solutions suspend the statute of limitations on a lawsuit to recover lost wages?

A: Yes and No. Filing a complaint with the New Mexico Department of Workforce Solutions, Labor Relations Division will suspend or “toll” the statute of limitations on related claims. Under federal law, filing with the U.S. Department of Labor will not toll the deadlines and you must file federal wage claims within the two year statute of limitations or lose those claims.

Q: I filed an overtime complaint with the U.S. Department of Labor (DOL), but it has not been resolved yet. Can I still bring a lawsuit?

A: Yes, but there are two caveats. First, you must drop your DOL claim before filing the overtime lawsuit based on the same facts, as you cannot have both proceedings pending against the same employer at the same time. In addition, because of the way overtime claims work, if you are no longer working for the defendant employer, the longer you wait to bring the overtime claim, the less value your claim will have. Make certain you file an overtime claim as soon as possible.

Under New Mexico law, you may opt to bring a lawsuit for your overtime claims at any time and the Labor Relations Division may decide to close its file at that time, or may monitor the litigation.
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Contact Buchanan Law Firm, LLC for an Experienced Employment Lawyer

Attorney Deena Buchanan brings extensive local knowledge and recognition to every case she handles, with a thorough understanding of the laws and courts in New Mexico. A trial lawyer with extensive experience handling complex employment law issues, she’s known for her poise and composure in all situations. She’s successfully resolved employment law disputes in many states, often working directly with EEOC or Department of Labor representatives in those states.

Deena knows from experience that every case is unique. She’ll listen carefully to learn the specific details of your situation, as well as your goals. To learn if you qualify for a free initial consultation, call our office at 505-900-3559 or send us an e-mail. We are available to meet with you outside of work hours, if necessary. All major credit cards are accepted for any matter involving an hourly fee, though most wage and hour claims are handled on a contingency basis.