No doubt like similar statutes in other states, the New Mexico Minimum Wage Act (MWA) requires an employer to pay overtime wages for hours worked in excess of forty hours in "any week of seven days." In 2013, the New Mexico Court of Appeals has concluded that "any week of seven days," which is not defined in the MWA, "means
a fixed and regularly recurring workweek established by an employer consistent with the federal Fair Labor Standard Act (FLSA) and regulations" promulgated thereunder. See Sinclaire v Elderhostel, Inc., 2012-NMCA-100. (Ooops, I forgot this in my Draft Box for a tad bit of time....)
In Sinclair, the Elederhostel employment handbook provided for a specific work week of 12:01 a.m. Sunday to 12:00 a.m. the following Saturday. However, as an educational tour leader, employee Peter Sinclair week varied with the particular educational tour program and he might work from Wednesday to Wednesday, or from Sunday to Saturday. Notably, there could be considerable difference in overtime owed depending on how the "week of seven days" is calculated.
Sinclair had argued, essentially, that "an employer must calculate each employee's workweek on the basis off the seven-day period the employee actually works, not on the basis of a fixed seven-day period arbitrarily established by the employer." Id. Para. 9; cf. 29 CFR 778.105 ((2011) (a "workweek is a fixed and regularly recurring period of 168 hours--seven consecutive[twenty-four] hour
periods" that "may begin on any day and at any hour of the day."
The Court noted that the purpose of the MWA is to "protect worker's health and well-being," and it concluded that Elderhostel's establishment of a fixed week "is not inconsistent" with that policy. It also noted that "a fixed workweek"--unlike the "fluctuating workweek method of calculating overtime" in DOL v. Echostar, 2012-NMCA-059--does not necessarily favor the employer under all circumstances."
Sinclair argued that Elderhostel "manipulated its workweek and established it so as to avoid paying the maximum amount of overtime,"but the Court was not persuaded that was the case. It observed that out of 32 weeks examined, Sinclair received the maximum overtime available at least half the time. Ultimately, the Court concluded that "[i]t makes sense that em
ployers should be required to establish a fixed work week ... in order to have predictability and certainty about payrolls. So long as an employer pays its employees a premium for the overtime worked in the established workweek, that employer is in compliance with Section 50-4-22(C).
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