New Mexico Overtime Laws

Time-and-a-half after 40 hours worked in a workweek is the practical starting point for most covered, nonexempt employees.

Overtime is calculated by workweek, not by pay period. An employer cannot average a long week and a short week together to avoid overtime that was earned in the long week.

New Mexico and federal law contain exemptions and special rules. When both laws cover the work, the employer generally must follow the requirement that gives the employee greater protection.

The general rule does not fit every worker or workplace. These points are especially important in New Mexico:

• -New Mexico does not impose a general daily overtime trigger for an ordinary private-sector schedule. A long day by itself does not create overtime unless a special law, contract or policy applies.
• -Saturday, Sunday and holiday work does not automatically require overtime under the FLSA. Hours actually worked in the employer's defined workweek control.
• -Agriculture, transportation, seasonal work, public employment, commissioned sales and certain care settings are common areas where exemptions or special calculations may apply.

Under the FLSA, hours worked generally include time the employer requires or permits an employee to spend working. That can include required preparation, certain training or travel, and work performed before clocking in or after clocking out.

Paid vacation, holidays and sick leave usually are not hours actually worked for the federal 40-hour calculation. A contract, policy or state-specific rule can be more generous.

The workweek is a fixed, recurring period of 168 hours. It does not have to run Monday through Sunday, but it cannot be changed from week to week simply to avoid overtime.

Being paid a salary does not automatically remove an employee's right to overtime.

Common executive, administrative and professional exemptions depend on the employee's real job duties and the applicable pay-basis requirements. A title such as "manager" does not settle the question.

State exemption tests can differ from federal tests. Employers should apply every law that covers the work rather than relying only on payroll method or title.

An employer may require advance approval before overtime is worked. Even so, covered work generally must be paid when the employer required it, allowed it, or knew or should have known it was happening.

The employer may address a violation of its scheduling policy separately, but it cannot accept compensable work and then erase the hours from payroll.