Opinion No. 57-173
July 17, 1957
TO: Mr. Anderson Carter, State Representative, Portales, New Mexico
QUESTIONS
QUESTIONS
An establishment where food drink is served, wholly separate in ownership and control, jointly occupies premises with a drugstore. Does the restaurant have to pay a 65c or a 75c minimum wage under the Minimum Wage Law?
CONCLUSION
Under the above facts, the above establishment may pay 65c per hour under the Minimum Wage Law.
OPINION
ANALYSIS
Please note the change in the question in order to make it conform to the facts as this office understands them to be.
Section 2 (b) of Chapter 200, Laws of 1955, defines "employer":
"Employer includes any individual, partnership, association, corporation, business trust, legal representative or any organized group of persons employing four or more employees at any one time, . . ."
The criterion set up by the Minimum Wage Law is employment and not joint occupation of premises. Such a drugstore and restaurant, as above described, cannot, under the statute, be designated as coming under the definition of a single "employer" pursuant to the Act. The fact that the two businesses occupy proximate premises or even the same premises does not make them a single employing unit. The facts, of course, are largely evidentiary in nature. We presume that the two employers may show separate organizational duties -- merely, as an example, to name a few, separate employment records, separate Social Security payments, separate withholding tax filings, separate leasing arrangements, etc.