New Mexico § 13-4-11 - Prevailing wage and benefit rates determined; minimum wages and fringe benefits on public works; weekly payment; withholding funds

§ 13-4-11. Prevailing wage and benefit rates determined; minimum wages and fringe benefits on public works; weekly payment; withholding funds

A. Every contract or project in excess of sixty thousand dollars ($60,000) that the

state or any political subdivision thereof is a party to for construction, alteration,

demolition or repair or any combination of these, including painting and decorating,

of public buildings, public works or public roads of the state and that requires or

involves the employment of mechanics, laborers or both shall contain a provision stating

the minimum wages and fringe benefits to be paid to various classifications of laborers

and mechanics, which shall be based upon the wages and benefits that will be determined

by the director to be prevailing for the corresponding classifications of laborers

and mechanics employed on contract work of a similar nature in the state or locality,

and every contract or project shall contain a stipulation that the contractor, subcontractor,

employer or a person acting as a contractor shall pay all mechanics and laborers employed

on the site of the project, unconditionally and not less often than once a week and

without subsequent unlawful deduction or rebate on any account, the full amounts accrued

at time of payment computed at wage rates and fringe benefit rates not less than those

determined pursuant to Subsection B of this section to be the prevailing wage rates

and prevailing fringe benefit rates issued for the project. B. Annually, no later than October 1, the director shall determine prevailing wage

rates and prevailing fringe benefit rates to take effect the next January 1 for respective

classifications of laborers and mechanics employed on public works projects at the

same wage rates and fringe benefit rates used in collective bargaining agreements

between labor organizations and their signatory employers that govern predominantly

similar classifications of laborers and mechanics for the locality of the public works

project and the crafts involved; provided that: (1) if the prevailing wage rates and prevailing fringe benefit rates cannot reasonably

and fairly be determined in a locality because no collective bargaining agreements

exist, the director shall determine the prevailing wage rates and prevailing fringe

benefit rates for the same or most similar classification of laborer or mechanic in

the nearest and most similar neighboring locality in which collective bargaining agreements

exist; (2) the director shall give due regard to information obtained during the director's

determination of the prevailing wage rates and the prevailing fringe benefit rates

made pursuant to this subsection; (3) any interested person shall have the right to submit to the director written data,

personal opinions and arguments supporting changes to the prevailing wage rate and

prevailing fringe benefit rate determination; (4) prevailing wage rates and prevailing fringe benefit rates determined pursuant

to the provisions of this section shall be compiled as official records and kept on

file in the director's office, and the records shall be updated in accordance with

the applicable rates used in subsequent collective bargaining agreements; (5) an appeal of the prevailing wage determination pursuant to the provisions of this

section shall not have the effect of creating a stay of the implementation of the

rate; and (6) during the pendency of an appeal, whether before the labor and industrial commission

or in a court, a court of competent jurisdiction may grant a stay of the implementation

of the wage rate based on a motion made by a party or an interested person, provided

the court gives an opportunity for any interested person to be heard on the matter. C. The prevailing wage rates and prevailing fringe benefit rates to be paid shall

be posted by the contractor or person acting as a contractor in a prominent and easily

accessible place at the site of the work; provided that there shall be withheld from

the contractor, subcontractor, employer or a person acting as a contractor so much

of accrued payments as may be considered necessary by the director or contracting

officer of the state or political subdivision to pay to laborers and mechanics employed

on the project the difference between the prevailing wage rates and prevailing fringe

benefit rates required by the director to be paid to laborers and mechanics on the

work and the wage rates and fringe benefit rates received by the laborers and mechanics

and not refunded to the contractor, subcontractor, employer or a person acting as

a contractor or the contractor's, subcontractor's, employer's or person's agents. D. Certified weekly payroll records of a contracting agency are subject to inspection

pursuant to the Inspection of Public Records Act; provided that the request shall

be fulfilled within twenty days of receipt of the written request. Certified weekly payroll records are subject to record retention requirements applicable

to payroll records of a state agency. E. Notwithstanding any other provision of law applicable to public works contracts

or agreements, the director may, with cause: (1) issue investigative or hearing subpoenas for the production of documents or witnesses

pertaining to public works prevailing wage projects; and (2) attach and prohibit the release of any assurance of payment required under Section 13-4-18 NMSA 1978 for a reasonable period of time beyond the time limits specified in that section

until the director satisfactorily resolves any probable cause to believe a violation

of the Public Works Minimum Wage Act or its implementing rules has taken place. F. A person may file with the director a complaint that a contractor, subcontractor,

employer or person acting as a contractor on the project has failed to pay the person

wages or fringe benefits at the rates required by the Public Works Minimum Wage Act. Within thirty days after the filing of the complaint, either party may request in

writing a mediation to resolve the complaint. G. The director shall, within thirty days of the filing of the complaint, commence

an investigation of the allegations contained in the complaint. The director shall, within seventy-five days after the completion of mediation or

if no mediation is requested, within seventy-five days after the filing of the complaint,

make a determination supported by findings of fact and conclusions of law whether

there has been an underpayment of wages or fringe benefits or other violation of the

Public Works Minimum Wage Act; provided that if the complaint is of a continuing

or significantly complex nature or involves multiple projects or job sites, the director

may extend the time in which to make a determination by up to six months by providing

written notice and an explanation to all parties of the need to extend the time. Prior to issuing a determination, the director shall provide the contractor, subcontractor,

employer or other person against whom the complaint has been filed with an opportunity

to respond to the complaint and provide any exculpatory evidence. H. If the director determines that there has been an underpayment of wages or fringe

benefits or a violation of the Public Works Minimum Wage Act, the director shall,

in the absence of a voluntary resolution by the parties and within thirty days of

making that determination, order the withholding of accrued payments as provided in

Subsection C of this section. I. The director shall issue rules necessary to administer and accomplish the purposes

of the Public Works Minimum Wage Act.