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New Mexico is special. It is the only state in the union that has a State sub-minimum wage law of $2.13 that matches the Federal Sub minimum Wage of $2.13. This wage for tipped workers is especially mean in the land of Enchantment
Because While the State law matches the Federal, it doesn’t always match the same protections and requirements for taking a tip credit under Federal Law. State Hour and Wage administrators are not congruent and do not always enforce the tip credit requirements of the Fair Labor Standards Act. This means tipped employees may be vulnerable to wage theft that Federal law protects under FLSA. The state law leaves a loop hole
Contact your NM State Legislators and ask them to make the change!
NM Statute 50-4-22 does not distinguish back of the house; non-direct service workers such as cooks or dishwashers from direct service workers such as servers,bussers, food runners and Hosts. New Mexico is the only state to have a subminimum wage of $2.13 that does not match the same criteria of the $2.13 Federal subminimum wage tip pool requirements!
WHY SHOULD SERVERS WHO ONLY EARN $2.13 BE FORCED TO SHARE TIPS WITH EMPLOYEES WHO EARN THE FULL MINIMUM WAGE OR HIGHER?
SHARING TIPS WITH THE BACK OF THE HOUSE SHOULD BE VOLUNTARY NOT MANDATORY
Until statutory changes are made to NM 50-4-22, servers are vulnerable to the practice of”double dipping” by employers who take advantage of paying a low wage through a tip credit and also requiring tipped employers to “subsidize” the wages of non-service employees. Last May of 2013, NM State Wage and Hour administrators were interviewed state-wide and were found to be incongruent in their responses in regards if they would apply FLSA standards to the tip credit or not. The NM Director of Wage and Hour did not respond to emails or call for comment. Through email and verbal interviews, Foods servers all over New Mexico report that the practice of double dipping remains widespread and commonplace.
C. An employee who customarily and regularly
receives more than thirty dollars ($30.00) a month in tips shall be paid a
minimum hourly wage of two dollars thirteen cents ($2.13). The employer may consider tips as part of
wages, but the tips combined with the employer’s cash wage shall not equal less
than the minimum wage rate as provided in Subsection A of this section. All tips received by such employees shall be
retained by the employee, except that nothing in this section shall prohibit
the pooling of tips among employees.