A. Whenever an employer discharges an employee, the unpaid wages or compensation of such employee, if a fixed and definite amount, and not based on a task, piece, commission basis or other method of calculation, shall, upon demand become due immediately, and the employer shall pay such wages to the employee within five days of such discharge.

B. In all other cases of discharged employees the settlement and payment of wages or compensation shall be made within ten days of such discharge.

C. In case of failure to pay wages or compensation due an employee within the time hereinbefore fixed, the wages and compensation of the employee shall continue from the date of discharge until paid at the same rate the employee received at the time of discharge, and may be recovered in a civil action brought by the employee; provided that the employee shall not be entitled to recover any wages or compensation for any period subsequent to the date of discharge unless he pleads in his complaint and establishes that he made demand within a reasonable time upon his employer at the place designated for payment and payment was refused, provided further that the employee shall not be entitled to recover any wages or compensation for any period subsequent to the sixtieth day after the date of discharge.

History: Laws 1937, ch. 109, § 4; 1941 Comp., § 57-304; 1953 Comp., § 59-3-4; Laws 1975, ch. 23, § 1.

Purpose of statutes of limitation. — Statutes of limitation are not only enacted to do away with stale claims, but also to encourage an employee seeking the benefits of the statute to act promptly. Spikes v. Mittry Constr. Co., 295 F.2d 207 (10th Cir. 1961).

Wages and commissions separate. — Upon timely payment of fixed and definite wages or compensation employer has no further obligation to employee in relation thereto under this section. However additional commissions not fixed and definite and not paid within 10 days continue to be payable until paid or tender thereof is made by employer. Litteral v. Singer Bus. Machs. Co., 1975-NMSC-015, 87 N.M. 365, 533 P.2d 754.

Scope of section. — In an action to exact a penalty from an employer for failure to pay wages, the time limitations of this section control over 37-1-3 NMSA 1978. Spikes v. Mittry Constr. Co., 295 F.2d 207 (10th Cir. 1961).

Failure to comply with statutory conditions. — An employer failed to comply with statutory conditions since it did not pay the amount conceded to be due employees within the times required by this section and since it could not show that it gave written notice of the amount conceded to be due as required by Section 50-4-7 NMSA 1978; giving a payroll check to employees for undisputed wages did not satisfy the latter requirement. Wolf v. Sam's Town Furniture Co., 1995-NMCA-114, 120 N.M. 603, 904 P.2d 52.

Accrued vacation pay was a fixed and definite amount, and the nonpayment of vacation time invoked the penalty of continued payment of both vacation time and wages for a maximum period of sixty days. Wolf v. Sam's Town Furniture Co., 1995-NMCA-114, 120 N.M. 603, 904 P.2d 52.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 48A Am. Jur. 2d Labor and Labor Relations § 4278.

Construction and application of provision of contract for compensation of employee upon dismissal or discharge, 147 A.L.R. 151, 40 A.L.R.2d 1044.

Estoppel to rely on statute of limitations, 24 A.L.R.2d 1413.

Right to discharge allegedly "at-will" employee as affected by employer's promulgation of employment policies as to discharge, 33 A.L.R.4th 120.

Damages recoverable for wrongful discharge of at-will employee, 44 A.L.R.4th 1131.

Validity, construction, and effect of state laws requiring payment of wages on resignation of employee immediately or within specified period, 11 A.L.R.5th 715.

Effectiveness of employer's disclaimer of representations in personnel manual or employee handbook altering at-will employment relationship, 17 A.L.R.5th 1.

Validity, construction, and effect of state laws requiring payment of wages on discharge of employee immediately or within specified period, 18 A.L.R.5th 577.

When statute of limitations commences to run as to cause of action for wrongful discharge, 19 A.L.R.5th 439.

Liability for breach of employment severance agreement, 27 A.L.R.5th 1.

Negligent discharge of employee, 53 A.L.R.5th 219.

Common law retaliatory discharge of employee for refusing to perform or participate in unlawful or wrongful acts, 104 A.L.R.5th 1.

Common law retaliatory discharge of employee for disclosing unlawful acts or other misconduct of employer or fellow employees, 105 A.L.R.5th 351.

30 C.J.S. Master and Servant §§ 133 to 135.