Missing hours and pay rate records complicate wage claims in New Mexico. Under the Wage Payment Act, you can reconstruct lost wages using alternative evidence. This FAQ explains how to calculate and support lost wage claims when key records are missing.
Detailed Answer
Under the New Mexico Wage Payment Act (NMSA 1978, § 50-4-2), employers must maintain accurate time and pay records. If those records are missing, you can use the following steps to reconstruct your earnings and build a wage claim.
1. Gather Alternative Evidence
- Bank statements showing direct deposit amounts and dates.
- Email or text confirmations of shift schedules and assignments.
- Calendar entries, work diaries, or digital calendars noting work hours.
- Tax documents such as W-2 or 1099 forms indicating total annual income.
- Affidavits from coworkers or supervisors describing your typical schedule.
2. Estimate Hours Worked
Calculate a reasonable estimate based on consistent patterns. For example, if you typically worked 40 hours per week, multiply 40 by the number of weeks worked. If your hours varied, determine an average weekly total over your employment period.
3. Determine Your Pay Rate
Use any known documentation, such as offer letters or final pay stubs. If the exact rate is unknown, apply the highest wage the employer paid you or at least the New Mexico minimum wage at the time (NMSA 1978, § 50-4-22).
4. Account for Overtime and Penalties
Under NMSA 1978, § 50-4-2, you may recover unpaid overtime at one and one-half times your regular rate for hours over 40 per week. You can also seek liquidated damages equal to the unpaid wages and may be entitled to attorney fees.
5. Document Your Methodology
Maintain a clear record of your calculations. Create a spreadsheet that logs estimated hours, pay rates, and totals owed. Label entries clearly as “estimated” and cite your source documents in notes or footnotes.
6. File Your Claim
Submit a written complaint to the New Mexico Department of Workforce Solutions Wage Claims Unit, including your reconstructed wage spreadsheet and supporting evidence. If the claim exceeds agency thresholds or remains unresolved, consider filing in Small Claims Court (up to $10,000).
Disclaimer: This information is for educational purposes only and does not constitute legal advice. Consider consulting a qualified attorney for personalized guidance.
Helpful Hints
- Start tracking hours and wages now with a reliable time-tracking app.
- Keep digital and paper copies of all pay stubs, bank statements, and work communications.
- Use a personal calendar or diary to record work hours contemporaneously.
- Promptly request any missing records from your employer in writing.
- For complex or large claims, consider consulting an employment attorney.