1998 -NMCA- 141, New Mexico Dept. of Labor v. A.C. Elec., Inc.

• Citation: 125 N.M. 779,1998 NMCA 141,965 P.2d 363
• Decision Date: 28 August 1998
• Docket Number: No. 18317,18317
• Court: Court of Appeals of New Mexico
• Parties: , 4 Wage & Hour Cas.2d (BNA) 1809, 1998 -NMCA- 141 NEW MEXICO DEPARTMENT OF LABOR, Petitioner-Appellant, v. A.C. ELECTRIC, INC., Respondent-Appellee.

Page 363

965 P.2d 363

125 N.M. 779, 4 Wage & Hour Cas.2d (BNA)

1809, 1998 -NMCA- 141

NEW MEXICO DEPARTMENT OF LABOR, Petitioner-Appellant, v. A.C. ELECTRIC, INC., Respondent-Appellee.

No. 18317.

Court of Appeals of New Mexico.

Aug. 28, 1998.

Tom Udall, Attorney General, Albert J. Lama, Damon Martinez, Assistant Attorneys General, Santa Fe, for Petitioner-Appellant.

Victor A. Titus, Titus & Murphy, Farmington, for Respondent-Appellee.

OPINION

ARMIJO, Judge.

¶1 In this case of first impression, the Court is asked to interpret the provision for overtime pay in New Mexico's Minimum Wage Act (MWA). NMSA 1978, §§ 50-4-19 to -30 (1955, as amended through 1996). Applying established principles of statutory interpretation, we determine that overtime pay is mandatory when an employee covered by Section 50-4-22(A) of the MWA works more than forty hours in a seven-day week with the employer's knowledge and consent, and where there is any pressure by the employer, however subtle, to perform such work. Because we determine that the district court applied an incorrect legal standard in this case, we reverse and remand for further proceedings consistent with this opinion.

I. BACKGROUND

¶2 In January 1995, Tandy Riddles (Employee) filed a claim for overtime pay with the New Mexico Department of Labor (Department) regarding work she performed while employed by A.C. Electric, Inc. (Employer) in 1994. The Department's Labor Law Administrator held a hearing on the matter and ruled that employee was owed $312.50 in overtime pay. Employee assigned her wage claim to the Department for purposes of collection under NMSA 1978, Section 50-4-11 (1945). The Department then filed a civil complaint against Employer in magistrate court which resulted in a judgment in Employee's favor after a jury trial. Employer appealed the magistrate court judgment to the district court.

¶3 In the district court, Employee testified that she was hired by Employer as an electrician apprentice starting at six dollars per hour. She further testified that Employer assigned her to work on a job in Gallup, New Mexico, during the summer of 1994. According to Employee, Employer told her that she would be working more than 40 hours per week on the Gallup job and that she would not be paid at one and one-half times her regular hourly wage for the hours over 40 per week. Employee believed that she had no choice in the matter. She was instructed to record her hours over 40 per week as "banked" hours on her time cards.

¶4 Employer's president testified that he did not tell Employee that she would have to work more than 40 hours per week on the Gallup job. Rather, the daily work hours at the Gallup job were set by a supervisor who was Employee's brother and who communicated with the president on several occasions about working on that job through the weekend. Employer's position at trial was that work in excess of 40 hours per week was available on the Gallup job if Employee wanted to work it and she agreed to "bank" such hours under a policy which Employer described as similar, in some respects, to state and local government policies that are authorized by Section 207(o) of the Fair Labor Standards Act (FLSA). 29 U.S.C. § 207(o) (1994); see generally 29 C.F.R. pt. 553 (1997) (application of FLSA to state and local government employees). Under this policy, Employee could convert her "banked" hours to compensatory time off on an hour-for-hour basis. If such compensatory time was not used by December 31 of the year in which it was earned, Employee would be paid at her regular hourly wage for the "banked" hours.

¶5 Employer's president acknowledged that this overtime policy may serve Employer's interests in several ways. For example, he testified that he had an interest in retaining full-time employees on the payroll during slow periods because, among other things, "the taxes are less." Also, since the money owed to employees for banked hours was not kept in a separate account, this money was available for Employer to use for other purposes until Employee requested payment or took the compensatory time off. With respect to the Gallup job in particular, Employer's president acknowledged that he thought two and one-half to three months would have been a reasonable amount of time to complete the work, but it actually took six months to complete. He also acknowledged that the slow pace of the Gallup job was a cause for concern because Employer's costs tend to increase the longer any job goes on.

¶6 After hearing the testimony of Employee, Employer, and the Labor Law Administrator, the district court found that Employee worked for Employer from July 6, 1994, to September 9, 1994, and during this period Employee worked in excess of 40 hours per week, for a total of 71 hours, with Employer's knowledge and consent. However, the district court also found that Employer paid overtime wages only when it specifically designated that time as overtime. The district court concluded that Employer did not "require" Employee to work in excess of 40 hours per week within the meaning of Section 50-4-22(C) of the MWA. As neither party asserted that Employee was covered by the FLSA's overtime provisions, the district court did not rule on whether Employer's overtime policy violates the FLSA or whether the MWA is preempted by federal law in any respect.

¶7 Based on its findings and conclusions, the district court dismissed Employee's claim for lack of proof of any statutory violation. The Department appeals the district court's order of dismissal.

II. DISCUSSION

¶8 This case presents a question of statutory interpretation which we review de novo. See Cox v. Municipal Boundary Comm'n, 120 N.M. 703, 705, 905 P.2d 741, 743 (Ct.App.1995); cf. State v. Attaway, 117 N.M. 141, 144-45, 870 P.2d 103, 107-08 (1994) (affording de novo review of mixed questions of fact and law requiring consideration of legal concepts and exercise of judgment about values that animate legal principles). In particular, we must ascertain the meaning of the phrase, "required to work," as it appears in Section 50-4-22(C). We also review the district court's application of Section 50-4-22(C) to the facts of this case.

¶9 Section 50-4-22(C) states that:

No employee covered by the provisions of Subsection A of this section shall be required to work more than forty hours in any week of seven days, unless he is paid one and one-half times his regular hourly rate of pay for all hours worked in excess of forty hours.

In interpreting this statute, our responsibility is "to search for and effectuate the legislative intent--the purpose or object--underlying the statute." State ex rel. Helman v. Gallegos, 117 N.M. 346, 353, 871 P.2d 1352, 1359 (1994).

¶10 Employer asserts that our interpretation of Section 50-4-22(C) must be governed by the plain-meaning rule, according to which we search no farther than the clear and unambiguous language of the statute itself to ascertain its meaning. See Cummings v. X-Ray Assoc. of N.M., 1996-NMSC-035, p 44, 121 N.M. 821, 918 P.2d 1321; Key v. Chrysler Motors Corp., 1996- NMSC-038, 121 N.M. 764, 768-69, 918 P.2d 350, 354-55. Employer further asserts that the term "require" should be given its ordinary meaning and cites a dictionary definition according to which this term means "to order to do something, to ask for authoritatively, demand, to impose need, to call for or exact an obligation, to place under an obligation or necessity." The Random House College Dictionary 1121 (rev. ed.1982). Under this interpretation, Employer asserts that Employee is not entitled to overtime pay because she was not required to work over 40 hours per week. Rather, she was simply permitted to work under Employer's policy of "banking" hours over 40 per week.

¶11 The Department asserts that Employer's application of the plain-meaning rule is not correct because it runs counter to the MWA's purpose and intent. We agree. The plain-meaning rule "does not require a mechanical, literal interpretation of the statutory language," and "[i]t is rare, if not impossible, for any language--statutory or otherwise--to be utterly free from ambiguity." Cummings, 1996-NMSC-035, p 45, 121 N.M. 821, 918 P.2d 1321. In this case, we find several aspects of Section 50-4-22(C) which "give rise to legitimate ... differences of opinion concerning the statute's meaning." Key, 1996-NMSC-038, 121 N.M. at 769, 918 P.2d at 355 (quoting Gallegos, 117 N.M. at 353, 871 P.2d at 1359).

¶12 First, there is no statutory definition of the phrase "required to work," and we recognize that the word "require" has different shades of meaning depending on its context. Cf. 2 The New Shorter Oxford English Dictionary 2556 (1993) (definitions of "require" include ask, inquire, question, seek, pursue, beg, entreat, invite, desire, request, call, summon, claim, insist, demand, or command). Because employers generally occupy a position of authority over their employees, any subtle pressure to work over 40 hours per week may be understood by those employees as "requiring" overtime in the sense of "to ask for authoritatively" or "to impose need." Subtle pressure can render the work less than totally voluntary. Thus, as a general rule, employees covered by the MWA may be "required to work" more than 40 hours per week even when their employers do not overtly demand such work.

¶13 This rule is consistent with the principle that a statute with a remedial purpose must be liberally construed to implement its purpose, and any exception will be strictly construed. See Michaels v. Anglo Am. Auto Auctions, Inc., 117 N.M. 91, 94, 869 P.2d 279, 282 (1994); Las Campanas Ltd. Partnership v. Pribble, 1997-NMCA-055, p 15, 123 N.M. 520, 943 P.2d 554. The MWA is a statute with a remedial purpose. As such, we must consider three points:

'the old law, the mischief, and the remedy; that is, how the common law stood at the making of the act; what the mischief was, for which...