Detailed Answer
When a former employer refuses to provide payroll records, you still have paths to prove your lost wages under New Mexico law. You can gather alternative documents, send a formal request, enlist state agencies, or use the courts to compel production.
1. Understand Your Rights Under the New Mexico Wage Payment Act
The New Mexico Wage Payment Act (NMSA 1978, § 50-4-2 & 50-4-3) requires employers to pay all wages due and keep accurate records. Federal law also obligates employers to retain payroll records for at least three years (29 C.F.R. § 516.2).
2. Send a Written Records Demand
Draft a certified letter or email to your former employer. State your name, dates of employment, and specific records you need (time sheets, pay stubs, wage statements). Reference the Wage Payment Act’s recordkeeping requirement. Keep copies of your request and delivery receipt.
3. Gather Alternative Evidence
If you lack employer records, collect bank statements showing direct deposits, W-2 or 1099 forms, your tax returns, and screenshots from any online payroll portal. Ask coworkers to share any pay stubs or time logs they still possess.
4. File a Wage Claim with the Department of Workforce Solutions
Submit a wage complaint to the New Mexico Department of Workforce Solutions. DWS investigates and can subpoena your former employer’s payroll records. Visit New Mexico DWS to file online or by mail.
5. Use the Courts to Compel Records
If DWS fails to resolve the matter, you can sue for unpaid wages in small claims court (up to $10,000) or district court. New Mexico Rule of Civil Procedure 1-045 NMRA lets you issue subpoenas for documents. In district court, use discovery tools like document requests and interrogatories.
6. Estimate and Calculate Lost Wages
Based on your alternative evidence, create a worksheet showing hours worked, pay rate, and total owed. Use consistent assumptions when hours or rates vary. Present this worksheet with your claim.
7. Consider Legal Consultation
Although this is not legal advice, you may benefit from a consultation with a labor attorney. Many attorneys offer free or low-cost initial meetings and can advise on damages, penalties, and attorney’s fees available under NMSA 1978, § 50-4-26.
Disclaimer: This article is for educational purposes only and does not constitute legal advice.
Helpful Hints
- Save all communications: emails, letters, and texts with your former employer.
- Use bank and credit union online statements to track deposits.
- Request a free copy of your IRS wage transcripts via IRS Form 4506-T.
- Keep copies of W-2s or 1099s for the relevant years.
- Note any unpaid overtime separately, and highlight dates and hours.
- Collect affidavits from coworkers who witnessed your hours.