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On January 1, 2014 the minimum wage tipped workers in Albuquerque is scheduled to increase to $5.10 per hour. This will affect 40,000 workers who depend on tips for wages. However, these workers may still be required to share thier tips with back of the house non service workers.
NM Statute 50-4-22 does not distinguish back of the non-direct service workers such as cooks or dishwashers from direct service workers. New Mexico is the only state to have a subminimum wage of $2.13 that does not match the same criteria of the Federal subminimum wage.
Until statutory changes are made to NM 50-4-22, servers are subject 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 nonservice employees. When interveiwed state wide, NM State Wage and Hour administrators were incongruent 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.
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.