August 13, 2012 – Peter Sinclaire v. Elderhostel, Inc., No. 30,089

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	AUGUST 13, 2012
NO. 30,089
PETER SINCLAIRE,
Plaintiff-Appellant,
v.
ELDERHOSTEL, INC., a
foreign corporation,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
James A. Hall, District Judge
The Okon Law Firm
Christa M. Okon
Santa Fe, NM
for Appellant
Tinnin Law Firm, P.C.
Stanley K. Kotovsky, Jr.
Albuquerque, NM
for Appellee

1Sinclaire claimed he was also due overtime wages for the period from mid-
2005 to January 2006, during which time he claims Elderhostel mis-designated him
as an independent contractor rather than an employee.
OPINION
FRY, Judge.
{1} 	In this case we consider what our Legislature intended when it enacted the
statute requiring employers to pay overtime wages for hours worked in excess of forty
hours in “any week of seven days.” 	We conclude that “any week of seven days”
means a fixed and regularly recurring workweek established by an employer
consistent with the federal Fair Labor Standards Act (FLSA) and regulations
promulgated under the authority of the FLSA. We reject Plaintiff Peter Sinclaire’s
argument that the employer’s workweek, for purposes of calculating overtime pay,
should change each time an employee’s work schedule changes. 	Because our
interpretation coincides with that of the district court, we affirm the district court’s
judgment.
BACKGROUND
{2} 	The parties do not dispute the following facts. 	Sinclaire began work as an
employee of Elderhostel in January 2006. 1 Included with the letter from Elderhostel
offering Sinclaire employment were documents explaining the procedures for payment
of wages and instructions for completing time sheets, and Sinclaire acknowledged

2
receipt of these documents. The documents stated that Elderhostel’s workweek was
from 12:01 a.m. Sunday to midnight the following Saturday. 	The documents also
instructed Sinclaire to complete one time sheet for each week (Sunday through
Saturday); if Sinclaire’s program crossed over a Saturday, he was to complete two
time sheets.
{3} 	Sinclaire led educational tours for Elderhostel, some of which corresponded
with the Sunday-to-Saturday workweek and some of which began on Wednesday and
concluded the following Wednesday. 	As a result of Elderhostel’s established
workweek and Sinclaire’s work schedule, if Sinclaire led a Wednesday-to-Wednesday
tour “that required him to work forty-two hours from Wednesday through Saturday
and forty-eight hours from Sunday to Wednesday, for a total of ninety hours[,
Sinclaire] would not receive overtime pay based on the fifty hours he worked over
forty” from Wednesday to Wednesday. Instead, Sinclaire would receive ten hours of
overtime—two hours in the first Sunday-to-Saturday workweek and eight hours in the
second workweek. However, if Sinclaire’s program ran from Sunday to Saturday, as
it often did, and if he worked more than forty hours during that program week, he
would receive time-and-a-half overtime for each hour over forty.
{4} 	Sinclaire believed that Elderhostel should be paying him overtime based on the
week he actually worked rather than on the Sunday-to-Saturday workweek. Because

2 Section 50-4-22(C) was amended in 2007 and is now Section 50-4-22(D),
which states, “An employee shall not be required to work more than forty hours in any
week of seven days, unless the employee is paid one and one-half times the
employee’s regular hourly rate of pay for all hours worked in excess of forty hours.”
3
Elderhostel disagreed with this view, Sinclaire filed a claim for unpaid overtime
wages with the New Mexico Department of Labor in February 2007. The Department
ultimately dismissed the case for lack of jurisdiction, and Sinclaire filed a complaint
in magistrate court. The magistrate court dismissed the complaint on the ground that
Sinclaire had failed to prove the allegations in his complaint. Sinclaire then appealed
the dismissal to the district court.
{5} 	The parties filed cross-motions for summary judgment on the issue of what
constitutes a “workweek” under the then-applicable version of NMSA 1978, Section
50-4-22 (2005) (amended 2007), which provided that “[a]n employee . . . shall not be
required to work more than forty hours in any week of seven days, unless the
employee is paid one and one-half times the employee’s regular hourly rate of pay for
all hours worked in excess of forty hours.” Section 50-4-22(C) (emphasis added) 2 .
Sinclaire argued that the statute, which is part of the New Mexico Minimum Wage
Act (MWA), 1978 NMSA, §§ 50-4-19 to -30 (1955, as amended through 2009), is
remedial in nature and should therefore be liberally construed in light of its goal of
protecting the worker. Consistent with this liberal construction, Sinclaire maintained,
the emphasis is on the term “any” in the phrase “in any week of seven days.”

4
Consequently, Sinclaire argued, he should receive overtime wages for any hours in
excess of forty hours that he worked during any seven-day period, regardless of
whether the period began on Sunday or Wednesday or any other day of the week.
{6} 	Elderhostel argued that the MWA does not define any “week of seven days”
and that, as a result, Section 50-4-22(C) should be interpreted consistent with the
FLSA, 29 U.S.C. §§ 201 to 219 (2006). Regulations promulgated under the FLSA
provide that “[a]n employee’s workweek is a fixed and regularly recurring period of
168 hours—seven consecutive [twenty-four]-hour periods” that “may begin on any
day and at any hour of the day.” Overtime Compensation, 29 C.F.R. § 778.105 (2011)
(emphasis added). 	“Once the beginning time of an employee’s workweek is
established, it remains fixed regardless of the schedule of hours worked by him.” Id.
Thus, Elderhostel maintained that it appropriately established a Sunday-to-Saturday
workweek and properly calculated Sinclaire’s overtime wages on the basis of that
workweek.
{7} 	Following 	a 	hearing 	on 	the 	cross-motions, 	the 	district 	court 	granted
Elderhostel’s motion for summary judgment and denied Sinclaire’s motion. 	This
appeal followed.

5
DISCUSSION
{8} 	This case requires us to interpret Section 50-4-22(C), and we therefore
undertake de novo review. 	See N.M. Dep’t of Labor v. Echostar Commc’ns Corp.,
2006-NMCA-047, ¶ 5, 139 N.M. 493, 134 P.3d 780 (stating that “[c]onstruction of
statutes is a question of law that we review de novo”). We also review the grant of
summary judgment de novo. 	Rodriguez v. N.M. Dep’t of Workforce Solutions,
2012-NMCA-059, ¶ 8, 278 P.3d 1047.
{9} 	On appeal, Sinclaire makes the same argument that he made in the district court.
The crux of his argument is that an employer must calculate each employee’s
workweek on the basis of the seven-day period the employee actually works, not on
the basis of a fixed seven-day period arbitrarily established by the employer. Thus,
according to Sinclaire’s view, his workweek with Elderhostel would sometimes be
from Wednesday to Tuesday and sometimes from Sunday to Saturday, or it could be
an entirely different seven-day period, depending on his schedule. Elderhostel would
be required to calculate Sinclaire’s wages based on his “roving” workweek.
{10} 	We must determine what the Legislature intended by the language of Section
50-4-22(C), which requires an employer to pay time-and-a-half to an employee who
works more than forty hours “in any week of seven days.” See Christus St. Vincent
Reg’l Med. Ctr. v. Duarte-Afara, 2011-NMCA-112, ¶ 9, 267 P.3d 70 (explaining that

6
the primary goal in interpreting statutes is to further legislative intent), cert. granted,
2011-NMCERT-010, ___ P.3d ___. 	If the meaning of a statute is clear and
unambiguous, we apply the statute as written. 	See Bishop v. Evangelical Good
Samaritan Soc’y, 	2009-NMSC-036, ¶ 9, 146 N.M. 473, 212 P.3d 361. 	However,
“where the language of the legislative act is doubtful or an adherence to the literal use
of words would lead to injustice, absurdity[,] or contradiction, the statute will be
construed according to its obvious spirit or reason, even though this requires the
rejection of words or the substitution of others.” 	Id. (alteration, internal quotation
marks, and citation omitted).
{11} 	As the district court observed, the statutory phrase at issue here—“any week of
seven days”—is not “crystal clear.” Sinclaire contends that the focus should be on the
word “any” such that an employee is entitled to overtime pay during any seven-day
period. 	Elderhostel maintains that the phrase should be interpreted so that it is
consistent with the FLSA and that “any week of seven days” permits different
employers to establish whatever fixed seven-day workweeks they desire.
{12} 	To determine which view more likely furthers the Legislature’s intent, we turn
first to the stated purpose of the MWA. Section 50-4-19 of the MWA states:
It is declared to be the policy of this act (1) to establish minimum wage
and overtime compensation standards for all workers at levels consistent
with their health, efficiency and general well-being, and (2) to safeguard
existing minimum wage and overtime compensation standards which are

7
adequate to maintain the health, efficiency and general well-being of
workers against the unfair competition of wage and hours standards
which do not provide adequate standards of living.
This declared policy recognizes that overtime standards protect workers’ health and
well-being by ensuring that workers are paid a premium for hours worked beyond the
number of hours deemed to be a reasonable maximum per week. See Echostar, 2006-
NMCA-047, ¶ 7 (explaining that overtime statutes intend “to compensate those who
labored in excess of the statutory maximum number of hours for the wear and tear of
extra work and to spread employment through inducing employers to shorten hours
because of the pressure of extra cost” (internal quotation marks and citation omitted)).
This policy is not inconsistent with Elderhostel’s establishment of a fixed workweek.
Employees of Elderhostel receive overtime wages for every hour in excess of forty
that they work in a given Sunday-to-Saturday workweek, which qualifies as a “week
of seven days” as required by Section 50-4-22(C).
{13} 	Sinclaire argues that the MWA is a remedial statutory scheme and, therefore,
it must be interpreted liberally to accomplish its purpose. See Echostar, 2006-NMCA-
047, ¶ 7. While we agree that this is a correct statement, we do not agree that a fixed
workweek thwarts the MWA’s remedial purpose. 	Elderhostel employees are paid
overtime wages earned during the Sunday-to-Saturday workweek, which is consistent

8
with the purpose of paying a premium for hours in excess of forty in order to protect
workers’ health and well-being.
{14} 	In addition, there is nothing in the MWA or our case law that would preclude
our interpreting the MWA as being consistent with the FLSA. Indeed, we have stated
in reference to the MWA and the FLSA that “[w]hen two statutes cover the same
subject matter, we attempt to harmonize and construe them together in a way that
facilitates their operation and the achievement of their goals.” N.M. Dep’t of Labor
v. A.C. Elec., Inc., 1998-NMCA-141, ¶ 20, 125 N.M. 779, 965 P.2d 363. The FLSA
regulations’ requirement of a fixed workweek does not do violence to either the
language or the purpose of Section 50-4-22(C).
{15} 	We recognize that this Court has declined to follow the FLSA when we
consider it to be inconsistent with state law. For example, in Echostar, we held that
the fluctuating workweek method of calculating overtime, while acceptable under the
FLSA, is inconsistent with Section 50-4-22(C). Echostar, 2006-NMCA-047, ¶¶ 11-
12, 17. The fluctuating workweek method permits an employer to pay an employee
“a fixed weekly salary plus an overtime factor of one-half of the hourly rate, which
hourly rate is calculated such that it decreases as the number of hours worked
increases.” 	Id. ¶ 1. Given the MWA’s stated policy, we concluded that “it makes

9
little sense to construe the statute to lessen the financial impact on employers the more
hours that employees are required to work.” Echostar, 2006-NMCA-047, ¶ 7.
{16} 	Echostar is distinguishable because a fixed workweek does not necessarily
favor the employer under all circumstances. 	One treatise suggests that a fixed
workweek can be advantageous to the employee as well as to the employer. 	For
example, “if an employee works [thirty] hours one workweek and [fifty] hours the
next, he or she must receive overtime compensation for the [ten] overtime hours
worked in the second workweek, even though the average number of hours worked
in the two weeks is [forty].” I Ellen C. Kearns, The Fair Labor Standards Act, ch.
10.III.A, at 10-8 (2d ed. 2010). This example is the flip-side of the situation Sinclaire
complains about in the present case where the tour at issue did not coincide with
Elderhostel’s workweek and the overtime pay required was to 	Elderhostel’s
advantage. 	Thus, the fixed workweek can sometimes be more beneficial to the
employee and sometimes more beneficial to the employer.
{17} 	Sinclaire maintains that Elderhostel manipulated its workweek and established
it so as to avoid paying the maximum amount of overtime. We are not persuaded.
Sinclaire presented no evidence suggesting that Elderhostel established a Sunday-to-
Saturday workweek in order to evade its obligation to pay overtime. 	In fact, in
support of his motion for summary judgment, Sinclaire submitted one of his

10
schedules, which showed that of thirty-two weeks Sinclaire worked, twenty-one
weeks started on days other than Wednesday; of those twenty-one weeks, sixteen
started on Sunday, which was the first day of Elderhostel’s established workweek.
Thus, for at least half the time, Sinclaire received the maximum overtime available
under any calculation. The rest of the time, Sinclaire received overtime premium pay
as required by Section 50-4-22(C), even if it was not as much as he would have
received if the workweek had begun on Wednesday. See Abshire v. Redland Energy
Servs., LLC, 822 F. Supp. 2d 874, 877 (W.D. Ark. 2011) (noting the “general rule”
that “an employer may establish a pay week that differs from its employees’ work
week if it is for a legitimate, or bona fide, business reason . . . even when a change in
payroll schedule results in decreased payments of overtime compensation to [the]
employees”); Kerbes v. Raceway Assocs., LLC, 961 N.E.2d 865, ¶ 29 (Ill. App. Ct.
2011) (noting that an employer’s work schedule that does not coincide with its
established workweek “does not deny [the employee] overtime, although it may
prevent him from receiving the maximum overtime to which he would be entitled if
we accept his contention that a workweek is any and every consecutive seven days
that he labors” (internal quotation marks and citation omitted)).
{18} 	Although we generally agree with Sinclaire that state law can provide greater
protection for employees than the FLSA, we are not convinced that Section 50-4-

11
22(C) was intended to adopt anything inconsistent with the FLSA’s definition of the
workweek. 	It makes sense that employers should be required to establish a fixed
workweek (or different fixed workweeks for different types of employees) in order to
have predictability and certainty about payrolls. 	So long as an employer pays its
employees a premium for the overtime hours worked in the established workweek,
that employer is in compliance with Section 50-4-22(C).
CONCLUSION
{19} 	For the foregoing reasons, we affirm the judgment of the district court.
{20} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
CELIA FOY CASTILLO, Chief Judge
MICHAEL D. BUSTAMANTE, Judge