Reaping the Rewards of Hard Work: Eliminating the New Mexico Minimum Wage Act’s Exemption for Workers Paid on a Piecework, Flat Rate, and Commission Basis

Authors

Jackie Munro-Vahey

Abstract

The federal Fair Labor Standards Act (“FLSA”) of 1938 created minimum wage, maximum hours, and overtime protections for the first time in United States history. One of the core principles of the FLSA was that states could also pass their own wage and hour laws, provided they were more protective of workers than the federal Act. In 2023, however, New Mexico is the only state where workers paid on a piecework, flat rate, and commission basis are exempt from the basic wage and hour protections of the federal Act because of a less protective state law. So, for example, medical transcribers paid by the lines they transcribe can work as quickly as they are able but still fail to earn the minimum wage. Delivery drivers paid by the packages they deliver and miles they drive can work over forty-hour weeks without overtime compensation. Because these practices comply with New Mexico law, impacted workers are discouraged from suing. Further, the class of impacted workers is diffuse and lacks the bargaining power to advocate for better protections. This lack of lawsuits and class cohesion only further silences these workers’ stories of underpayment. The exemption is reminiscent of the Lochner era, when freedom to contract away what are today seen as basic wage and hour protections was seen as a fundamental right. It also leads to absurd results: an exempted worker can be made to wait idly on the job for up to twenty hours a week without compensation for that time. Ultimately, the choice to deny certain workers protections because of their manner of payment is an arbitrary one. This Comment argues that this exemption from the New Mexico Minimum Wage Act (“MWA”) is contrary to legislative intent and public policy, is preempted by federal law, and is unconstitutional under the New Mexico Constitution’s Equal Protection Clause. The New Mexico Legislature or the courts should eliminate the exemption to ensure that these workers receive the protections they deserve.

Creative Commons License

This work is licensed under a Creative Commons Attribution-NonCommercial-No Derivative Works 4.0 International License.

Recommended Citation

Jackie Munro-Vahey, Reaping the Rewards of Hard Work: Eliminating the New Mexico Minimum Wage Act’s Exemption for Workers Paid on a Piecework, Flat Rate, and Commission Basis, 53 N.M. L. Rev. 483 (2023).
Available at: https://digitalrepository.unm.edu/nmlr/vol53/iss2/7