N.M. Admin. Code § 11.1.2.16

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

Section 11.1.2.16 - PROCEDURE FOR ENFORCEMENT ACTIONS

A. If the contractor or subcontractor has not complied with the director's request for certified payroll records or if the director determines that a violation of the PWMA has occurred and not been rectified, notice shall be given to the contracting agency and the contractor or subcontractor that payment to the non-compliant contractor or subcontractor in an amount sufficient to pay the laborers and mechanics working on the project shall be withheld by the contracting agency until compliance has been secured.

B. If the director determined that any laborer or mechanic employed on the site of the project has been, or is being, paid at a rate less than the rates required and in the absence of a voluntary resolution, the contracting agency shall, within 30 days of the director's determination, by written notice, terminate the right of the contractor, subcontractor, or employer who failed to pay appropriate wages to proceed with the work or with part of the work as to which there has been a failure to pay the required wages or fringe benefits. The contracting agency shall prosecute the work to completion by contract or otherwise. The contractor, subcontractor, or employer, or a person acting as surety thereof, shall be liable to the state for any excess costs as a result of the termination of the contractor's, subcontractor's, or employer's right to proceed with the work.

C. The director may cancel, revoke, or suspend the registration of any party required to be registered pursuant to the PWMWA for failure to comply with the registration requirements or for good cause, pursuant to Section 13-4-14.2 NMSA 1978. The director shall determine when good cause exists to cancel, revoke, or suspend the registration of any party. Frequent violations or a single substantive violation of the PWMWA could be good cause to cancel, revoke, or suspend the registration of any party.

D. The director shall include the name of any contactor or subcontractor who has willfully violated the PWMWA on a list to be distributed to all department of the state, pursuant to Section 13-4-14 NMSA 1978. The cancellation, suspension, or revocation shall remain in effect for three years, unless the contractor or subcontractor promptly corrects the action that led to the cancellation, suspension, or revocation of the registration and complies with any requirements imposed by the director as conditions of reinstatement.

E. If the director determines that there was an underpayment of wages or fringe benefits, the contractor, subcontractor, or employer shall be liable to any affected employee for $100 for each calendar day the contractor, subcontractor, or employer willfully failed to pay appropriate wages in violation of the PWMWA. In addition, if the aggregate underpayment of wages or fringe benefits is greater than $500, the contractor, subcontractor, or employer responsible for the underpayment shall be liable to any affected employee for three times the amount of the employee's unpaid wages or fringe benefits.

F. Prior to taking any enforcement action, the director shall provide notice of contemplated action to the contractor, subcontractor, or employer, setting out the basis for the proposed enforcement action.

(1) The notice of contemplated action shall be provided at least 15 days prior to any final enforcement action taken by the director.

(2) Any party who received a notice of contemplated action may provide a written response to the director for consideration prior to the final enforcement action.

(3) The director shall consider the written response provided by a party prior to taking any final enforcement action.

(4) After consideration of the response, the director may continue with the final enforcement action as proposed in the notice of contemplated action.

G. Any determination, finding, or action of the director in enforcing the PWMWA may be appealed to the labor and industrial commission by any interested party pursuant to Section 13-4-15 NMSA 1978 and 11.1.2.17 NMAC. The decision of the director shall be final 15 days after issuance unless an appeal is files pursuant to 11.1.2.17 NMAC. Once the decision is final, the director may then proceed to the remedies available under 13-4-14 NMSA.

H. Mediation by parties: Upon completion of the investigation, the director may schedule a settlement meeting between the parties. During the settlement meeting, the parties shall be notified of the preliminary conclusions of the investigation, including any potential amounts owed. If a settlement is agreed to by the parties, the investigator shall prepare the settlement agreement for signature by all parties and, upon any payments due, shall close the investigation.

I. The provisions of this section do not limit any worker's right to pursue a claim for payment of any prevailing wages that may be due nor do the provisions of this section diminish the contractor or subcontractor's duty to cooperate with the division.

J. Nothing in this section shall prevent the director, with probable cause, to immediately certify to the contracting agency pursuant to 13-4-14 NMSA 1978 and exercise the release of any assurance of payment required under 13-4-14 NMSA.

N.M. Admin. Code § 11.1.2.16

6/4/79, 11/4/88, 8/15/98; 11.1.2.16 NMAC - Rn, 11 NMAC 1.1.16, 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