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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 their tips with back of the house non service workers due to a loop hole in State statutory law.

 WHY CLOSE THE LOOP HOLE?

Because While employers are not shielded from Federal law,  it is still very difficult and confusing to enforce Federal law that contradicts with state law.

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 nonservice 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.

NM50-4-22 1978

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.