N.M. Stat. § 13-4-11 (2026)

wages and fringe benefits on public works; weekly payment;
withholding funds; industrial revenue bond projects.
    A. Every contract or project in excess of sixty thousand dollars ($60,000) that the
state or any political subdivision thereof is a party to for construction, alteration,
demolition or repair or any combination of these, including painting and decorating, of
public buildings, public works or public roads of the state and that requires or involves
the employment of mechanics, laborers or both shall contain a provision stating the
minimum wages and fringe benefits to be paid to various classifications of laborers and
mechanics, which shall be based upon the wages and benefits that will be determined
by the director to be prevailing for the corresponding classifications of laborers and
mechanics employed on contract work of a similar nature in the state or locality, and
every contract or project shall contain a stipulation that the contractor, subcontractor,
employer or a person acting as a contractor shall pay all mechanics and laborers
employed on the site of the project, unconditionally and not less often than once a week
and without subsequent unlawful deduction or rebate on any account, the full amounts
accrued at time of payment computed at wage rates and fringe benefit rates not less
than those determined pursuant to Subsection B of this section to be the prevailing
wage rates and prevailing fringe benefit rates issued for the project.

    B. Annually, no later than October 1, the director shall determine prevailing wage
rates and prevailing fringe benefit rates to take effect the next January 1 for respective
classifications of laborers and mechanics employed on public works projects at the
same wage rates and fringe benefit rates used in collective bargaining agreements
between labor organizations and their signatory employers that govern predominantly
similar classifications of laborers and mechanics for the locality of the public works
project and the crafts involved; provided that:

       (1)     if the prevailing wage rates and prevailing fringe benefit rates cannot
reasonably and fairly be determined in a locality because no collective bargaining
agreements exist, the director shall determine the prevailing wage rates and prevailing
fringe benefit rates for the same or most similar classification of laborer or mechanic in
the nearest and most similar neighboring locality in which collective bargaining
agreements exist;

       (2)     the director shall give due regard to information obtained during the
director's determination of the prevailing wage rates and the prevailing fringe benefit
rates made pursuant to this subsection;

       (3)    any interested person shall have the right to submit to the director written
data, personal opinions and arguments supporting changes to the prevailing wage rate
and prevailing fringe benefit rate determination;

        (4)     prevailing wage rates and prevailing fringe benefit rates determined
pursuant to the provisions of this section shall be compiled as official records and kept
on file in the director's office, and the records shall be updated in accordance with the
applicable rates used in subsequent collective bargaining agreements;

        (5)    an appeal of the prevailing wage determination pursuant to the provisions
of this section shall not have the effect of creating a stay of the implementation of the
rate; and

      (6)    during the pendency of an appeal, whether before the labor and industrial
commission or in a court, a court of competent jurisdiction may grant a stay of the
implementation of the wage rate based on a motion made by a party or an interested
person, provided the court gives an opportunity for any interested person to be heard on
the matter.

    C. The prevailing wage rates and prevailing fringe benefit rates to be paid shall be
posted by the contractor or person acting as a contractor in a prominent and easily
accessible place at the site of the work; provided that there shall be withheld from the
contractor, subcontractor, employer or a person acting as a contractor so much of
accrued payments as may be considered necessary by the director or contracting
officer of the state or political subdivision to pay to laborers and mechanics employed on
the project the difference between the prevailing wage rates and prevailing fringe
benefit rates required by the director to be paid to laborers and mechanics on the work
and the wage rates and fringe benefit rates received by the laborers and mechanics and
not refunded to the contractor, subcontractor, employer or a person acting as a
contractor or the contractor's, subcontractor's, employer's or person's agents.
   D. Certified weekly payroll records of a contracting agency are subject to inspection
pursuant to the Inspection of Public Records Act [Chapter 14, Article 2 NMSA 1978];
provided that the request shall be fulfilled within twenty days of receipt of the written
request. Certified weekly payroll records are subject to record retention requirements
applicable to payroll records of a state agency.

   E. Notwithstanding any other provision of law applicable to public works contracts or
agreements, the director may, with cause:

       (1)   issue investigative or hearing subpoenas for the production of documents
or witnesses pertaining to public works prevailing wage projects; and

        (2)    attach and prohibit the release of any assurance of payment required
under Section 13-4-18 NMSA 1978 for a reasonable period of time beyond the time
limits specified in that section until the director satisfactorily resolves any probable
cause to believe a violation of the Public Works Minimum Wage Act or its implementing
rules has taken place.

   F. A person may file with the director a complaint that a contractor, subcontractor,
employer or person acting as a contractor on the project has failed to pay the person
wages or fringe benefits at the rates required by the Public Works Minimum Wage Act.
Within thirty days after the filing of the complaint, either party may request in writing a
mediation to resolve the complaint.

    G. The director shall, within thirty days of the filing of the complaint, commence an
investigation of the allegations contained in the complaint. The director shall, within
seventy-five days after the completion of mediation or if no mediation is requested,
within seventy-five 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 or fringe benefits or other violation of the Public Works
Minimum Wage Act; provided that if the complaint is of a continuing or significantly
complex nature or involves multiple projects or job sites, the director may extend the
time in which to make a determination by up to six months by providing written notice
and an explanation to all parties of the need to extend the time. Prior to issuing a
determination, the director shall provide the contractor, subcontractor, employer or other
person against whom the complaint has been filed with an opportunity to respond to the
complaint and provide any exculpatory evidence.

    H. If the director determines that there has been an underpayment of wages or
fringe benefits or a violation of the Public Works Minimum Wage Act, the director shall,
in the absence of a voluntary resolution by the parties and within thirty days of making
that determination, order the withholding of accrued payments as provided in
Subsection C of this section.

   I. The director shall issue rules necessary to administer and accomplish the
purposes of the Public Works Minimum Wage Act.
   J. For projects undertaken under the auspices of a municipality or county through
the issuance of an industrial revenue bond, the contractor, subcontractor, employer or
person acting as a contractor shall pay the prevailing wage and comply with the
provisions of this section.

History: 1953 Comp., § 6-6-6, enacted by Laws 1965, ch. 35, § 1; 1979, ch. 35, § 1;
1991, ch. 224, § 1; 2005, ch. 253, § 1; 2009, ch. 206, § 3; 2020, ch. 47, § 1; 2022, ch. 5,
§ 1; 2025, ch. 132, § 1.

                                     ANNOTATIONS

The 2025 amendment, effective June 20, 2025, required that projects undertaken by a
municipality or county through the issuance of industrial revenue bonds pay the
prevailing wage and comply with the provisions of this section; in the section heading,
added "industrial revenue bond projects"; and added Subsection J.

The 2022 amendment, effective May 18, 2022, provided that prevailing wage rates and
prevailing fringe benefit rates are to be determined annually by October 1 to take effect
the next January 1, provided that an appeal of the prevailing wage determination does
not stay implementation of the rate, and provided that during the pendency of an
appeal, whether before the labor and industrial commission or in a court, a court of
competent jurisdiction may grant a stay of the implementation of the wage rate upon
motion by a party or an interested person, as long as the court gives an opportunity for
any interested person to be heard on the matter; and in Subsection B, in the
introductory paragraph, after "Annually", added "no later than October 1", and after the
first occurrence of "fringe benefit rates", added "to take effect the next January 1", and
added Paragraphs B(5) and B(6).

The 2020 amendment, effective May 20, 2020, provided a process to resolve prevailing
wage complaints, and increased penalties; in Subsection A, replaced each occurrence
of "classes" with "classifications"; in Subsection B, in the introductory clause, added
"Annually", after "respective", deleted "classes" and added "classifications", and deleted
"classes or" preceding the next occurrence of "classifications", in Paragraph B(1),
deleted "class or" preceding "classifications"; in Subsection C, after "provided that
there", deleted "may" and added "shall", and after "considered necessary by the", added
"director"; added a new Subsection D and redesignated former Subsection D as
Subsection E; and added new Subsections F through H and redesignated the
succeeding subsection accordingly.

The 2009 amendment, effective July 1, 2009, in Subsection A, after "stating the
minimum wages", added "and fringe benefits"; after "based upon the wages", added
"and benefits"; after "payment computed at wage rates", added "and fringe benefit
rates" and after "not less than those", deleted "stated in the minimum wage rates" and
added "determined pursuant to Subsection B of this section to be the prevailing wage
rates and prevailing fringe benefit rates"; deleted former Subsection B, which provided
that the director shall conduct a continuing program for obtaining and compiling wage-
rate information; added Subsection B; and in Subsection C, at the beginning of the
sentence, deleted "scale of wages" and added "prevailing wage rates and prevailing
fringe benefit rates"; after "the difference between the", deleted "rates of wages" and
added "prevailing wage rates and prevailing fringe benefit rates"; and after "mechanics
on the work and the", changed "rates received by such laborers" to "wage rates and
fringe benefit rates received by the laborers".

The 2005 amendment, effective July 1, 2005, increased the threshold amount of a
contract or project from $20,000 to $60,000 in Subsection A and added Subsection D to
provide that the director may with cause issue subpoenas for production of documents
or witnesses and attach and prohibit the release of any assurance payment until the
director resolves any probable cause to believe that a violation has occurred.

The 1991 amendment, effective July 1, 1991, substituted "director of the labor and
industrial division of the labor department" for "director" and for "chief of the labor and
industrial bureau" throughout the section; inserted "subcontractor, employer or any
person acting as a contractor" following "contractor" near the middle of the introductory
paragraph and in two places in Subsection B; in the introductory paragraph, substituted
"contract or project" for "contract based upon these specifications" near the middle and
"minimum wage rates issued for the project" for "advertised specifications" at the end; in
Subsection B, inserted "or person acting as a contractor" near the beginning and
substituted "employed on the project the difference between the rates of wages required
by the director of the labor and industrial division of the labor department" for "employed
by the contractor or subcontractor on the work the difference between the rates of
wages required by the contract" near the middle; and made minor stylistic changes
throughout the section.

The word "determine" is synonymous with "ascertain". City of Albuquerque v.
Burrell, 1958-NMSC-070, 64 N.M. 204, 326 P.2d 1088.

Private non-profit corporations. — The standard to be applied when determining
whether private non-profit corporations that lease hospitals from government entities
meet the definition of "political subdivision" under this section is whether under the
totality of the circumstances the private entity is so intertwined with a public entity that
the private entity becomes an alter ego of the public entity. Memorial Med. Ctr. v. Tatsch
Constr., Inc., 2000-NMSC-030, 129 N.M. 677, 12 P.3d 431.

Procurement Code not applicable to non-state fair concession contracts. —
Where plaintiff, a for-profit corporation providing dental services, was awarded a
contract to provide dental services for Albuquerque public schools (APS) in response to
a request for information (RFI) issued by APS, which stated that all services performed
per an award for the RFI must be performed at no cost to APS and that successful
applicants would be directed to bill medicaid, other third-party payers or provide
services pro bono, and where plaintiff filed a complaint for declaratory judgment
requesting an order declaring that the RFI was subject to the Procurement Code, the
district court did not err in dismissing plaintiff’s complaint, because APS’s RFI falls
under the definition of a concession contract, and under the clear language of 13-1-
30(A) NMSA 1978, non-state fair concession contracts are not covered by the
Procurement Code. Mira Consulting, Inc. v. Board of Educ., 2017-NMCA-009.

Section inapplicable when telecommunication system replaced. — This section did
not apply to a contract whereby the telecommunications system in a state university
was simply replaced without any construction or alteration of the buildings and when
cables were installed in preexisting tunnels. Universal Commc'n Sys. v. Smith, 1986-
NMSC-076, 104 N.M. 754, 726 P.2d 1384.

The director has a nondiscretionary duty to set prevailing wage rates in
accordance with collective bargaining agreements. — This section imposes a
mandatory, nondiscretionary duty on the director of the labor relations division of the
New Mexico department of workforce solutions (director) to set prevailing wage rates
and prevailing fringe benefit rates according to collective bargaining agreements for all
public works projects costing more than sixty thousand dollars to which the state or any
political subdivision is a party. This section also imposes a continuing duty on the
director to update the prevailing wage and prevailing benefit rates according to
applicable rates used in subsequent collective bargaining agreements. N.M. Bldg. and
Constr. Trades Council v. Dean, 2015-NMSC-023.

Where petitioners, an alliance of craft unions representing the interests of thousands of
New Mexico employees working on public works projects throughout the state, sought a
writ of mandamus ordering the director of the labor relations division of the New Mexico
department of workforce solutions (director) to set prevailing wage and prevailing
benefit rates in accordance with the Public Works Minimum Wage Act, §§ 13-4-10 to -
17 NMSA 1978, mandamus was proper because 13-4-11 NMSA 1978 imposes a
mandatory, nondiscretionary duty on the director to set prevailing wage rates and
prevailing fringe benefit rates according to collective bargaining agreements for all
public works projects costing more than sixty thousand dollars to which the state or any
political subdivision is a party. N.M. Bldg. and Constr. Trades Council v. Dean, 2015-
NMSC-023.

Section violated. — Classification of and wage payments to an employee is in violation
of this section, when the interpretation and application of standard job classifications
and descriptions were not based upon the prevailing wages being paid on contract work
of a similar nature to corresponding classes of laborers and mechanics performing the
same work as that employee performed. L.H. Lacy Co. v. State Labor & Indus. Comm'n,
1976-NMSC-065, 89 N.M. 563, 555 P.2d 684.

Section resembles Davis-Bacon Act. — The New Mexico statute is practically
identical with the Davis-Bacon Act (40 U.S.C.S. § 276a), and if a contractor was
challenging the law the New Mexico supreme court would readily accept the reasoning
of the United States supreme court. City of Albuquerque v. Burrell, 1958-NMSC-070, 64
N.M. 204, 326 P.2d 1088.
Duty to determine prevailing ways. — Before promulgation of an order setting the
minimum wage scale to be paid on public works a determination must be made of the
prevailing wages being paid in a locality for like work. City of Albuquerque v. Burrell,
1958-NMSC-070, 64 N.M. 204, 326 P.2d 1088.

Employer cannot be ordered to pay additional wages. — This section expressly
confers the power to determine the prevailing wage but does grant the power to order
an employer to pay the additional wages determined to be due his laborers. If it is
determined that a person or firm has failed to pay the prevailing minimum wages, then
the certification procedure outlined in Paragraphs [Subsections] A and B of Section 13-
4-14 NMSA 1978 must be followed. Grauerholtz v. New Mexico Labor & Indus.
Comm'n, 1986-NMSC-071, 104 N.M. 674, 726 P.2d 351.

Health benefits are part of prevailing wage. — The health benefits provided pursuant
to Executive Order No. 2007-49, issued on October 25, 2007, titled "State of New
Mexico Contractor Health Coverage Requirement", which directs executive branch state
agencies that solicit and award contracts after January 1, 2008 to require prospective
contractors to offer health care coverage to their New Mexico employees as part of their
procurement submittal, is a valid, enforceable contract that may be accounted for as
part of the prevailing wage. 2008 Op. Att'y Gen. No. 08-05.

Section preempted. — This act is preempted by the federal government's
predetermined wage rate only when the New Mexico rate is lower than that
predetermined by the federal government. 1971 Op. Att'y Gen. No. 71-114.

When section applies. — When the political subdivision contracts with another entity
to carry out public works, the public works minimum wage rates apply. 1967 Op. Att'y
Gen. No. 67-100.

When section does not apply. — When a school board acts as both the contractor
and political subdivision, this section does not apply. One entity cannot contract with
itself under this section. 1967 Op. Att'y Gen. No. 67-100.

Submission of false wage rate data may be perjury or false swearing. 1964 Op.
Att'y Gen. No. 63-160.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 64 Am. Jur. 2d Public Works and
Contracts §§ 216 to 240.

Validity of statute, ordinance, or charter provision requiring that workmen on public
works be paid the prevailing or current rate of wages, 18 A.L.R.3d 944.

What entities or projects are "public" for purposes of state statutes requiring payment of
prevailing wages on public works projects, 5 A.L.R.5th 470.
Who is "employee," "workman," or the like, or contractor subject to state statute
requiring payment of prevailing wages on public works projects, 5 A.L.R.5th 513.

What are "prevailing wages," or the like, for purposes of state statute requiring payment
of prevailing wages on public works projects, 7 A.L.R.5th 400.

Employers subject to state statutes requiring payment of prevailing wages on public
works projects, 7 A.L.R.5th 444.

What projects involve work subject to state statutes requiring payment of prevailing
wages on public works projects, 10 A.L.R.5th 337.

Employees' private right of action to enforce state statute requiring payment of
prevailing wages on public works projects, 10 A.L.R.5th 360.

51B C.J.S. Labor Relations §§ 1022, 1039.