N.M. Admin. Code § 11.1.2.15

Current through Register Vol. 35, No. 23, December 10, 2024

Section 11.1.2.15 - PROCEDURE FOR INVESTIGATION OF VIOLATIONS

A. The director shall investigate a complaint filed by any adversely affected party, any interested party, or an agent thereof, regarding potential violations of the PWMWA and shall give priority to complaint involving open projects before the contracting agency has made final payment on the project.

B. The director shall determine if there is a probable cause violation and convey all relevant information to the contracting agency, prime contractor and bonding companies.

C. If the director determines there is probable cause of a violation, an investigation shall be undertaken and the director shall request, or subpoena, all certified payroll records and other relevant financial records from either the subcontractor or the prime contractor. The director has a non-discretionary duty, upon probable cause to request all payroll records in question from either the prime contractor or the subcontractor. The contractor or subcontractor shall provide legible copies of the requested records within 10 business days of the receipt of the director's written request or subpoena. If the director does not receive records pursuant to the initial request or the subpoena, the director may suspend the contractor's LEF registration and order the withholding of funds from the prime contractor of the project. If an LEF registration is suspended due to non-response, the contractor shall submit a new registration and registration fee to the division upon compliance with the director's record request.

D. The director shall, within 30 days of the filing of a complaint by any employee, contracting agency, contractor, or other interested person, or any agent thereof, giving reliable allegations establishing probable cause of violations of the PWMWA commence an investigation of the allegations contained within the complaint. The director shall within 75 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 of fringe benefits or other violation of the PWMWA, including the amount due and owing by any contractor or subcontractor to any employee. If the complaint is of significantly complex nature, or involves multiple projects or job sites, the director may extend the time in which the determination is to be made by up to six months by providing a written notice and explanation to all parties.

E. The director shall provide the contractor, subcontractor, employer, or other persons against whom the complaint has been made an opportunity to respond to the complaint and provide exculpatory evidence prior to issuing the determination.

F. If it is determined that there has been an underpayment of wages or fringe benefits or other violation of the PWMWA, the director shall make demand for the payment of the amount due and notify the contracting agency of the amount determined to be due. In the absence of a voluntary withholding of accrued payments from the contractor, subcontractor, employer or other person until the laborers and mechanics employed on the project receive a payment for the amount of the underpayment of wages or fringe benefits or other violation of the PWMWA. If no violation is found, the investigation will be closed and notice sent to all parties.

G. The director shall certify to the contracting agency, and the employer involved, the names of persons or firms in violation of the PWMWA, specifying the amounts due to each employee. The director shall also promptly notify the contracting agency and the employer if the investigation determines that the failure of the employer to comply with the PWMWA was found to be willful.

H. Mediation may be requested by any party at any time throughout the investigation by submitting a written request to the director.

I. Any adversely affected interested party or that party's agent may appeal any determination, finding, or action of the director to the labor an industrial commission pursuant to the procedures set forth in 11.1.2.17 NMAC.

N.M. Admin. Code § 11.1.2.15

5/31/72, 6/4/79, 11/4/88, 9/25/89; 11.1.2.15 NMAC - Rn, 11 NMAC 1.1.15, 12/31/09; A, 3/15/12, Adopted by New Mexico Register, Volume XXVII, Issue 24, December 30, 2016, eff. 12/30/2016, Amended by New Mexico Register, Volume XXXI, Issue 21, November 10, 2020, eff. 11/10/2020, Amended by New Mexico Register, Volume XXXI, Issue 24, December 29, 2020, eff. 11/10/2020