45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO UNEMPLOYMENT COMPENSATION; PROVIDING UNEMPLOYMENT BENEFITS TO PARENTS WHO LEAVE EMPLOYMENT TO BE WITH THEIR NEWBORNS OR NEWLY ADOPTED CHILDREN.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 51-1-4 NMSA 1978 (being Laws 1969, Chapter 213, Section 1, as amended by Laws 2000, Chapter 3, Section 1 and also by Laws 2000, Chapter 7, Section 1) is amended to read:

"51-1-4. MONETARY COMPUTATION OF BENEFITS--PAYMENT GENERALLY.--

A. All benefits provided herein are payable from the [unemployment compensation] fund. All benefits shall be paid in accordance with such [regulations] rules as the secretary may prescribe through employment offices or other agencies as the secretary may by general rule approve.

B. Weekly benefits shall be as follows:

(1) an individual's "weekly benefit amount" is an amount equal to one twenty-sixth of the total wages for insured work paid to him in that quarter of his base period in which total wages were highest. No benefit as so computed may be less than ten percent or more than fifty-two and one-half percent of the state's average weekly wage for all insured work. The state's average weekly wage shall be computed from all wages reported to the department from employing units in accordance with [regulations] rules of the secretary for the period ending June 30 of each calendar year divided by the total number of covered employees divided by fifty-two, effective for the benefit years commencing on or after the first Sunday of the following calendar year. Any such individual is not eligible to receive benefits unless he has wages in at least two quarters of his base period. For purposes of this subsection, "total wages" means all remuneration for insured work, including commissions and bonuses and the cash value of all remuneration in a medium other than cash;

(2) each eligible individual who is unemployed in any week during which he is in a continued claims status shall be paid, with respect to such week, a benefit in an amount equal to his weekly benefit amount, less that part of the wages, if any, or earnings from self-employment, payable to him with respect to such week which is in excess of one-fifth of his weekly benefit amount. For purposes of this subsection only, "wages" includes all remuneration for services actually performed in any week for which benefits are claimed, vacation pay for any period for which the individual has a definite return-to-work date, wages in lieu of notice and back pay for loss of employment but does not include payments through a court for time spent in jury service;

(3) notwithstanding any other provision of this section, each eligible individual who, pursuant to a plan financed in whole or in part by a base-period employer of such individual, is receiving a governmental or other pension, retirement pay, annuity or any other similar periodic payment that is based on the previous work of such individual and who is unemployed with respect to any week ending subsequent to April 9, 1981 shall be paid with respect to such week, in accordance with [regulations] rules prescribed by the secretary, compensation equal to his weekly benefit amount reduced, but not below zero, by the prorated amount of such pension, retirement pay, annuity or other similar periodic payment that exceeds the percentage contributed to the plan by the eligible individual. The maximum benefit amount payable to such eligible individual shall be an amount not more than twenty-six times his reduced weekly benefit amount. If payments referred to in this section are being received by any individual under the federal Social Security Act, the division shall take into account the individual's contribution and make no reduction in the weekly benefit amount;

(4) in the case of a lump-sum payment of a pension, retirement or retired pay, annuity or other similar payment by a base-period employer that is based on the previous work of such individual, such payment shall be allocated, in accordance with [regulations] rules prescribed by the secretary, and shall reduce the amount of unemployment compensation paid, but not below zero, in accordance with Paragraph (3) of this subsection; and

(5) the retroactive payment of a pension, retirement or retired pay, annuity or any other similar periodic payment as provided in Paragraphs (3) and (4) of this subsection attributable to weeks during which an individual has claimed or has been paid unemployment compensation shall be allocated to such weeks and shall reduce the amount of unemployment compensation for such weeks, but not below zero, by an amount equal to the prorated amount of such pension. Any overpayment of unemployment compensation benefits resulting from the application of the provisions of this paragraph shall be recovered from the claimant in accordance with the provisions of Section 51-1-38 NMSA 1978.

C. [Any] Except as provided in Subsection D of this section, an otherwise eligible individual is entitled during any benefit year to a total amount of benefits equal to whichever is the lesser of twenty-six times his weekly benefit amount or sixty percent of his wages for insured work paid during his base period.

D. As long as the total benefits received pursuant to the Unemployment Compensation Law are less than the maximum calculated pursuant to Subsection C of this section, an individual qualifying for benefits pursuant to Section 51-1-59 NMSA 1978 is entitled during any benefit year to a total amount of benefits equal to whichever is the lesser of thirteen times the individual's weekly benefit amount or thirty percent of his wages for insured work paid during his base period.

[D.] E. Any benefit as determined in Subsection B, [or] C or D of this section, if not a multiple of one dollar ($1.00), shall be rounded to the next lower multiple of one dollar ($1.00).

[E.] F. The secretary may prescribe [regulations] rules to provide for the payment of benefits that are due and payable to the legal representative, dependents, relatives or next of kin of claimants since deceased. These [regulations] rules need not conform with the laws governing successions, and the payment shall be deemed a valid payment to the same extent as if made under a formal administration of the succession of the claimant.

[F.] G. The division, on its own initiative, may reconsider a monetary determination whenever it is determined that an error in computation or identity has occurred or that wages of the claimant pertinent to such determination but not considered have been newly discovered or that the benefits have been allowed or denied on the basis of misrepresentation of fact, but no redetermination shall be made after one year from the date of the original monetary determination. Notice of a redetermination shall be given to all interested parties and shall be subject to an appeal in the same manner as the original determination. In the event that an appeal involving an original monetary determination is pending at the time a redetermination is issued, the appeal, unless withdrawn, shall be treated as an appeal from such redetermination."

Section 2. Section 51-1-5 NMSA 1978 (being Laws 1969, Chapter 213, Section 2, as amended by Laws 2000, Chapter 3, Section 2 and also by Laws 2000, Chapter 7, Section 2) is amended to read:

"51-1-5. BENEFIT ELIGIBILITY CONDITIONS.--

A. Except as provided in Section 51-1-59 NMSA 1978, an unemployed individual shall be eligible to receive benefits with respect to any week only if he:

(1) has made a claim for benefits with respect to such week in accordance with such [regulations] rules as the secretary may prescribe;

(2) has registered for work at, and thereafter continued to report at, an employment office in accordance with such [regulations] rules as the secretary may prescribe, except that the secretary may, by [regulation] rule, waive or alter either or both of the requirements of this paragraph as to individuals attached to regular jobs and as to such other types of cases or situations with respect to which he finds that compliance with such requirements would be oppressive or would be inconsistent with the purposes of the Unemployment Compensation Law. No such [regulation] rule shall conflict with Subsection A of Section 51-1-4 NMSA 1978;

(3) is able to work and is available for work and is actively seeking permanent and substantially full-time work in accordance with the terms, conditions and hours common in the occupation or business in which the individual is seeking work, except that the secretary may, by [regulation] rule, waive this requirement for individuals who are on temporary layoff status from their regular employment with an assurance from their employers that the layoff shall not exceed four weeks or who have an express offer in writing of substantially full-time work that will begin within a period not exceeding four weeks;

(4) has been unemployed for a waiting period of one week. No week shall be counted as a week of unemployment for the purposes of this paragraph:

(a) unless it occurs within the benefit year that includes the week with respect to which he claims payment of benefits;

(b) if benefits have been paid with respect thereto; and

(c) unless the individual was eligible for benefits with respect thereto as provided in this section and Section 51-1-7 NMSA 1978, except for the requirements of this subsection and of Subsection E of Section 51-1-7 NMSA 1978;

(5) has been paid wages in at least two quarters of his base period;

(6) has reported to an office of the division in accordance with the [regulations] rules of the secretary for the purpose of an examination and review of the individual's availability for and search for work, for employment counseling, referral and placement and for participation in a job finding or employability training and development program. No individual shall be denied benefits under this section for any week that he is participating in a job finding or employability training and development program; and

(7) participates in reemployment services, such as job search assistance services, if the division determines that the individual is likely to exhaust regular benefits and need reemployment services pursuant to a profiling system established by the division, unless the division determines that:

(a) the individual has completed such services; or

(b) there is justifiable cause for the individual's failure to participate in the services.

B. A benefit year as provided in Section 51-1-4 NMSA 1978 and Subsection P of Section 51-1-42 NMSA 1978 may be established; provided no individual may receive benefits in a benefit year unless, subsequent to the beginning of the immediately preceding benefit year during which he received benefits, he performed service in "employment", as defined in Subsection F of Section 51-1-42 NMSA 1978, and earned remuneration for such service in an amount equal to at least five times his weekly benefit amount.

C. Benefits based on service in employment defined in Paragraph (8) of Subsection F of Section 51-1-42 and Section 51-1-43 NMSA 1978 are to be paid in the same amount, on the same terms and subject to the same conditions as compensation payable on the basis of other services subject to the Unemployment Compensation Law; except that:

(1) benefits based on services performed in an instructional, research or principal administrative capacity for an educational institution shall not be paid for any week of unemployment commencing during the period between two successive academic years or terms or, when an agreement provides for a similar period between two regular but not successive terms, during such period or during a period of paid sabbatical leave provided for in the individual's contract, to any individual if such individual performs such services in the first of such academic years or terms and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms;

(2) benefits based on services performed for an educational institution other than in an instructional, research or principal administrative capacity shall not be paid for any week of unemployment commencing during a period between two successive academic years or terms if such services are performed in the first of such academic years or terms and there is a reasonable assurance that such individual will perform services for any educational institution in the second of such academic years or terms. If compensation is denied to any individual under this paragraph and the individual was not offered an opportunity to perform such services for the educational institution for the second of such academic years or terms, the individual shall be entitled to a retroactive payment of benefits for each week for which the individual filed a claim and certified for benefits in accordance with the [regulations] rules of the division and for which benefits were denied solely by reason of this paragraph;

(3) benefits shall be denied to any individual for any week that commences during an established and customary vacation period or holiday recess if such individual performs any services described in Paragraphs (1) and (2) of this subsection in the period immediately before such period of vacation or holiday recess and there is a reasonable assurance that such individual will perform any such services in the period immediately following such vacation period or holiday recess;

(4) benefits shall not be payable on the basis of services specified in Paragraphs (1) and (2) of this subsection during the periods specified in Paragraphs (1), (2) and (3) of this subsection to any individual who performed such services in or to or on behalf of an educational institution while in the employ of a state or local governmental educational service agency or other governmental entity or nonprofit organization; and

(5) for the purpose of this subsection, to the extent permitted by federal law, "reasonable assurance" means a reasonable expectation of employment in a similar capacity in the second of such academic years or terms based upon a consideration of all relevant factors, including the historical pattern of reemployment in such capacity, a reasonable anticipation that such employment will be available and a reasonable notice or understanding that the individual will be eligible for and offered employment in a similar capacity.

D. Paragraphs (1), (2), (3), (4) and (5) of Subsection C of this section shall apply to services performed for all educational institutions, public or private, for profit or nonprofit, which are operated in this state or subject to an agreement for coverage under the Unemployment Compensation Law of this state, unless otherwise exempt by law.

E. Notwithstanding any other provisions of this section or Section 51-1-7 NMSA 1978, no otherwise eligible individual is to be denied benefits for any week because he is in training with the approval of the division nor is such individual to be denied benefits by reason of application of provisions in Paragraph (3) of Subsection A of this section or Subsection C of Section 51-1-7 NMSA 1978 with respect to any week in which he is in training with the approval of the division. The secretary shall provide, by [regulation] rule, standards for approved training and the conditions for approving such training for claimants, including any training approved or authorized for approval pursuant to Section 236(a)(1) and (2) of the Trade Act of 1974, as amended, or required to be approved as a condition for certification of the state's Unemployment Compensation Law by the United States secretary of labor.

F. Notwithstanding any other provisions of this section, benefits shall not be payable on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for the purposes of performing such services or was permanently residing in the United States under color of law at the time such services were performed, including an alien who was lawfully present in the United States as a result of the application of the provisions of Section 212(d)(5) of the Immigration and Nationality Act; provided that:

(1) any information required of individuals applying for benefits to determine their eligibility for benefits under this subsection shall be uniformly required from all applicants for benefits; and

(2) no individual shall be denied benefits because of his alien status except upon a preponderance of the evidence.

G. Notwithstanding any other provision of this section, benefits shall not be paid to [any] an individual on the basis of any services substantially all of which consist of participating in sports or athletic events or training or preparing to so participate for any week that commences during the period between two successive sport seasons, or similar periods, if such individual performed such services in the first of such seasons, or similar periods, and there is a reasonable assurance that such individual will perform such services in the latter of such seasons or similar periods.

H. Students who are enrolled in a full-time course schedule in an educational or training institution or program, other than those persons in an approved vocational training program in accordance with Subsection E of this section, shall not be eligible for unemployment benefits except as provided by [regulations] rules promulgated by the secretary.

I. As used in this subsection, "seasonal ski employee" means an employee who has not worked for a ski area operator for more than six consecutive months of the previous twelve months or nine of the previous twelve months. Any employee of a ski area operator who has worked for a ski area operator for six consecutive months of the previous twelve months or nine of the previous twelve months shall not be considered a seasonal ski employee. The following benefit eligibility conditions apply to a seasonal ski employee:

(1) except as provided in Paragraphs (2) and (3) of this subsection, a seasonal ski employee employed by a ski area operator on a regular seasonal basis shall be ineligible for a week of unemployment benefits that commences during a period between two successive ski seasons unless such individual establishes to the satisfaction of the secretary that he is available for and is making an active search for permanent full-time work;

(2) a seasonal ski employee who has been employed by a ski area operator during two successive ski seasons shall be presumed to be unavailable for permanent new work during a period after the second successive ski season that he was employed as a seasonal ski employee; and

(3) the presumption described in Paragraph (2) of this subsection shall not arise as to any seasonal ski employee who has been employed by the same ski area operator during two successive ski seasons and has resided continuously for at least twelve successive months and continues to reside in the county in which the ski area facility is located.

J. Notwithstanding any other provision of this section, an otherwise eligible individual shall not be denied benefits for any week by reason of the application of Paragraph (3) of Subsection A of this section because he is before any court of the United States or any state pursuant to a lawfully issued summons to appear for jury duty."

Section 3. Section 51-1-7 NMSA 1978 (being Laws 1936 (S.S.), Chapter 1, Section 5, as amended) is amended to read:

"51-1-7. DISQUALIFICATION FOR BENEFITS.--Except as provided in Section 51-1-59 NMSA 1978, an individual shall be disqualified for, and shall not be eligible to receive, benefits:

A. if it is determined by the division that he left his employment voluntarily without good cause in connection with his employment; provided, however, that no person shall be denied benefits under this subsection solely on the basis of pregnancy or the termination of pregnancy. For purposes of this subsection, "employment" means the individual's last employer as defined by the [regulations] rules of the secretary and the provisions of [the] Subsection C of Section 51-1-8 NMSA 1978. The disqualification shall continue for the duration of his unemployment and until he has earned wages in such bona fide employment other than self-employment as provided by regulation of the secretary in an amount equivalent to five times his weekly benefit amount otherwise payable;

B. if it is determined by the division that he has been discharged for misconduct connected with his employment. For purposes of this subsection, "employment" means the individual's last employer as defined by the [regulations] rules of the secretary and the provisions of Subsection C of Section 51-1-8 NMSA 1978. The disqualification shall continue for the duration of his unemployment and until he has earned wages in such bona fide employment other than self-employment as provided by [regulation] rule of the secretary in an amount equivalent to five times his weekly benefit amount otherwise payable;

C. if it is determined by the division that he has failed without good cause either to apply for available, suitable work when so directed or referred by the [employment security] division or to accept suitable work when offered him. The disqualification shall include the week such failure occurred and shall continue for the duration of his unemployment and until he has earned wages in bona fide employment other than self-employment as provided by [regulations] rules of the secretary in an amount equivalent to five times his weekly benefit amount otherwise payable; provided, that no more than one such disqualification shall be imposed upon any individual for failure to apply for or accept the same position, or a similar position, with the same employer, except upon a determination by the division of disqualification under Subsection D of this section.

(1) In determining whether or not any work is suitable for an individual, the division shall consider the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation and the

distance of available work from his residence.

(2) Notwithstanding any other provisions of the Unemployment Compensation Law, no work shall be deemed suitable and benefits shall not be denied under the Unemployment Compensation Law to any otherwise eligible individual for refusing to accept new work under any of the following conditions:

(a) if the position offered is vacant due directly to a strike, lockout or other labor dispute;

(b) if the wages, hours or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality; or

(c) if, as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organizations;

D. for any week with respect to which the division finds that his unemployment is due to a labor dispute at the factory, establishment or other premises at which he is or was last employed; provided that this subsection shall not apply if it is shown to the satisfaction of the division that:

(1) he is not participating in or directly interested in the labor dispute; and

(2) he does not belong to a grade or class of workers of which, immediately before the commencement of the labor dispute, there were members employed at the premises at which the labor dispute occurs, any of whom are participating in or directly interested in the dispute; provided that if in any case separate branches of work [which] that are commonly conducted in separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall, for the purposes of this subsection, be deemed to be a separate factory, establishment or other premises; and

E. for any week with respect to which, or a part of which, he has received or is seeking, through any agency other than the division, unemployment benefits under an unemployment compensation law of another state or of the United States; provided that if the appropriate agency of such other state or of the United States finally determines that he is not entitled to such unemployment benefits, this disqualification shall not apply."

Section 4. Section 51-1-11 NMSA 1978 (being Laws 1961, Chapter 139, Section 3, as amended by Laws 2000, Chapter 3, Section 3 and also by Laws 2000, Chapter 7, Section 3) is amended to read:

"51-1-11. FUTURE RATES BASED ON BENEFIT EXPERIENCE.--

A. The division shall maintain a separate account for each contributing employer and shall credit his account with all contributions paid by him under the Unemployment Compensation Law. Nothing in the Unemployment Compensation Law shall be construed to grant any employer or individuals in his service prior claims or rights to the amounts paid by the employer into the fund.

B. Except as provided in Section 51-1-59 NMSA 1978, benefits paid to an individual shall be charged against the accounts of his base-period employers on a pro rata basis according to the proportion of his total base-period wages received from each, except that no benefits paid to a claimant as extended benefits under the provisions of Section 51-1-48 NMSA 1978 shall be charged to the account of any base-period employer who is not on a reimbursable basis and who is not a governmental entity and, except as the secretary shall by [regulation] rule prescribe otherwise, in the case of benefits paid to an individual who:

(1) left the employ of a base-period employer who is not on a reimbursable basis voluntarily without good cause in connection with his employment;

(2) was discharged from the employment of a base-period employer who is not on a reimbursable basis for misconduct connected with his work;

(3) is employed part time by a base-period employer who is not on a reimbursable basis and who continues to furnish the individual the same part-time work while the individual is separated from full-time work for a nondisqualifying reason; or

(4) received benefits based upon wages earned from a base-period employer who is not on a reimbursable basis while attending approved training under the provisions of Subsection E of Section 51-1-5 NMSA 1978.

C. The division shall not charge a contributing or reimbursing base-period employer's account with any portion of benefit amounts that the division can bill to or recover from the federal government as either regular or extended benefits.

D. All contributions to the fund shall be pooled and available to pay benefits to any individual entitled thereto, irrespective of the source of such contributions. The standard rate of contributions payable by each employer shall be five and four-tenths percent.

E. No employer's rate shall be varied from the standard rate for any calendar year unless, as of the computation date for that year, his account has been chargeable with benefits throughout the preceding thirty-six months, except that:

(1) the provisions of this subsection shall not apply to governmental entities;

(2) subsequent to December 31, 1984, any employing unit that becomes an employer subject to the payment of contributions under the Unemployment Compensation Law or has been an employer subject to the payment of contributions at a standard rate of two and seven-tenths percent through December 31, 1984 shall be subject to the payment of contributions at the reduced rate of two and seven-tenths percent until, as of the computation date of a particular year, the employer's account has been chargeable with benefits throughout the preceding thirty-six months; and

(3) any individual, type of organization or employing unit that acquires all or part of the trade or business of another employing unit, pursuant to Paragraphs (2) and (3) of Subsection E of Section 51-1-42 NMSA 1978, that has a reduced rate of contribution shall be entitled to the transfer of the reduced rate to the extent permitted under Subsection G of this section.

F. The secretary shall, for the year 1942 and for each calendar year thereafter, classify employers in accordance with their actual experience in the payment of contributions and with respect to benefits charged against their accounts, with a view of fixing such contribution rates as will reflect such benefit experience. Each employer's rate for any calendar year shall be determined on the basis of his record and the condition of the fund as of the computation date for such calendar year.

An employer may make voluntary payments in addition to the contributions required under the Unemployment Compensation Law, which shall be credited to his account in accordance with department [regulation] rule. The voluntary payments shall be included in the employer's account as of the employer's most recent computation date if they are made on or before the following March 1. Voluntary payments when accepted from an employer shall not be refunded in whole or in part.

G. In the case of a transfer of an employing enterprise, the experience history of the transferred enterprise as provided in Subsection F of this section shall be transferred from the predecessor employer to the successor under the following conditions and in accordance with the applicable [regulations] rules of the secretary:

(1) Definitions:

(a) "employing enterprise" is a business activity engaged in by a contributing employing unit in which one or more persons have been employed within the current or the three preceding calendar quarters;

(b) "predecessor" means the owner and operator of an employing enterprise immediately prior to the transfer of such enterprise;

(c) "successor" means any individual or any type of organization that acquires an employing enterprise and continues to operate such business entity; and

(d) "experience history" means the experience rating record and reserve account, including the actual contributions, benefit charges and payroll experience of the employing enterprise.

(2) For the purpose of this section, two or more employers who are parties to or the subject of any transaction involving the transfer of an employing enterprise shall be deemed to be a single employer and the experience history of the employing enterprise shall be transferred to the successor employer if the successor employer has acquired by the transaction all of the business enterprises of the predecessor; provided that:

(a) all contributions, interest and penalties due from the predecessor employer have been paid;

(b) notice of the transfer has been given in accordance with the [regulations] rules of the secretary within four years of the transaction transferring the employing enterprise or the date of the actual transfer of control and operation of the employing enterprise;

(c) in the case of the transfer of an employing enterprise, the successor employer must notify the division of the acquisition on or before the due date of the successor employer's first wage and contribution report. If the successor employer fails to notify the division of the acquisition within this time limit, the division, when it receives actual notice, shall effect the transfer of the experience history and applicable rate of contribution retroactively to the date of the acquisition, and the successor shall pay a penalty of fifty dollars ($50.00); and

(d) where the transaction involves only a merger, consolidation or other form of reorganization without a substantial change in the ownership and controlling interest of the business entity, as determined by the secretary, the limitations on transfers stated in Subparagraphs (a), (b) and (c) of this paragraph shall not apply. No party to a merger, consolidation or other form of reorganization described in this paragraph shall be relieved of liability for [any] contributions, interest or penalties due and owing from the employing enterprise at the time of the merger, consolidation or other form of reorganization.

(3) The applicable experience history may be transferred to the successor in the case of a partial transfer of an employing enterprise if the successor has acquired one or more of the several employing enterprises of a predecessor but not all of the employing enterprises of the predecessor and each employing enterprise so acquired was operated by the predecessor as a separate store, factory, shop or other separate employing enterprise and the predecessor, throughout the entire period of his contribution with liability applicable to each enterprise transferred, has maintained and preserved payroll records that, together with records of contribution liability and benefit chargeability, can be separated by the parties from the enterprises retained by the predecessor to the satisfaction of the secretary or his delegate. A partial experience history transfer will be made only if:

(a) the successor notifies the division of the acquisition, in writing, not later than the due date of the successor's first quarterly wage and contribution report after the effective date of the acquisition;

(b) the successor files an application provided by the division that contains the endorsement of the predecessor within thirty days from the delivery or mailing of such application by the division to the successor's last known address; and

(c) the successor files with the application a Form ES-903A or its equivalent with a schedule of the name and social security number of and the wages paid to and the contributions paid for each employee for the three and one-half year period preceding the computation date as defined in Subparagraph (d) of Paragraph (3) of Subsection H of this section through the date of transfer or such lesser period as the enterprises transferred may have been in operation. The application and Form ES-903A shall be supported by the predecessor's permanent employment records, which shall be available for audit by the division. The application and Form ES-903A shall be reviewed by the division and, upon approval, the percentage of the predecessor's experience history attributable to the enterprises transferred shall be transferred to the successor. The percentage shall be obtained by dividing the taxable payrolls of the transferred enterprises for such three and one-half year period preceding the date of computation or such lesser period as the enterprises transferred may have been in operation by the predecessor's entire payroll.

H. For each calendar year, adjustments of contribution rates below the standard or reduced rate and measures designed to protect the fund are provided as follows:

(1) The total assets in the fund and the total of the last annual payrolls of all employers subject to contributions as of the computation date for each year shall be determined. These annual totals are here called "the fund" and "total payrolls". For each year, the "reserve" of each employer qualified under Subsection E of this section shall be fixed by the excess of his total contributions over total benefit charges computed as a percentage of his average payroll reported for contributions. The determination of each employer's annual rate, computed as of the computation date for each calendar year, shall be made by matching his reserve as shown in the reserve column with the corresponding rate shown in the applicable rate schedule of the table provided in Paragraph (4) of this subsection.

(2) Each employer's rate for each calendar year commencing January 1, 1979 or thereafter shall be:

(a) the rate in schedule 1 of the table provided in Paragraph (4) of this subsection on the corresponding line as his reserve if the fund equals at least three and four-tenths percent of the total payrolls;

(b) the rate in schedule 2 of the table provided in Paragraph (4) of this subsection on the corresponding line if the fund has dropped to less than three and four-tenths percent and not less than two and seven-tenths percent;

(c) the rate in schedule 3 of the table provided in Paragraph (4) of this subsection on the corresponding line if the fund has dropped to less than two and seven-tenths percent and not less than two percent;

(d) the rate in schedule 4 of the table provided in Paragraph (4) of this subsection on the corresponding line if the fund has dropped to less than two percent and not less than one and one-half percent;

(e) the rate in schedule 5 of the table provided in Paragraph (4) of this subsection on the corresponding line if the fund has dropped to less than one and one-half percent and not less than one percent; or

(f) the rate in schedule 6 of the table provided in Paragraph (4) of this subsection on the corresponding line if the fund has dropped less than one percent.

(3) As used in this section:

(a) "annual payroll" means the total amount of remuneration from an employer for employment during a twelve-month period ending on a computation date, and "average payroll" means the average of the last three annual payrolls;

(b) "base-period wages" means the wages of an individual for insured work during his base period on the basis of which his benefit rights were determined;

(c) "base-period employers" means the employers of an individual during his base period; and

(d) "computation date" for each calendar year means the close of business on June 30 of the preceding calendar year.

(4) Table of employer reserves and contribution rate schedules:

Employer Contribution Contribution Contribution

Reserve Schedule 1 Schedule 2 Schedule 3

10.0% and over 0.05% 0.1% 0.6%

9.0%-9.9% 0.1% 0.2% 0.9%

8.0%-8.9% 0.2% 0.4% 1.2%

7.0%-7.9% 0.4% 0.6% 1.5%

6.0%-6.9% 0.6% 0.8% 1.8%

5.0%-5.9% 0.8% 1.1% 2.1%

4.0%-4.9% 1.1% 1.4% 2.4%

3.0%-3.9% 1.4% 1.7% 2.7%

2.0%-2.9% 1.7% 2.0% 3.0%

1.0%-1.9% 2.0% 2.4% 3.3%

0.9%-0.0% 2.4% 3.3% 3.6%

(-0.1%)-(-0.5%) 3.3% 3.6% 3.9%

(-0.5%)-(-1.0%) 4.2% 4.2% 4.2%

(-1.0%)-(-2.0%) 5.0% 5.0% 5.0%

Under (-2.0%) 5.4% 5.4% 5.4%

Employer Contribution Contribution Contribution

Reserve Schedule 4 Schedule 5 Schedule 6

10.0% and over 0.9% 1.2% 2.7%

9.0%-9.9% 1.2% 1.5% 2.7%

8.0%-8.9% 1.5% 1.8% 2.7%

7.0%-7.9% 1.8% 2.1% 2.7%

6.0%-6.9% 2.1% 2.4% 2.7%

5.0%-5.9% 2.4% 2.7% 3.0%

4.0%-4.9% 2.7% 3.0% 3.3%

3.0%-3.9% 3.0% 3.3% 3.6%

2.0%-2.9% 3.3% 3.6% 3.9%

1.0%-1.9% 3.6% 3.9% 4.2%

0.9%-0.0% 3.9% 4.2% 4.5%

(-0.1%)-(-0.5%) 4.2% 4.5% 4.8%

(-0.5%)-(-1.0%) 4.5% 4.8% 5.1%

(-1.0%)-(-2.0%) 5.0% 5.1% 5.3%

Under (-2.0%) 5.4% 5.4% 5.4%.

I. The division shall promptly notify each employer of his rate of contributions as determined for any calendar year pursuant to this section. Such notification shall include the amount determined as the employer's average payroll, the total of all his contributions paid on his own behalf and credited to his account for all past years and total benefits charged to his account for all such years. Such determination shall become conclusive and binding upon the employer unless, within thirty days after the mailing of notice thereof to his last known address or in the absence of mailing, within thirty days after the delivery of such notice, the employer files an application for review and redetermination, setting forth his reason therefor. The employer shall be granted an opportunity for a fair hearing in accordance with [regulations] rules prescribed by the secretary, but no employer shall have standing, in [any] a proceeding involving his rate of contributions or contribution liability, to contest the chargeability to his account of [any] benefits paid in accordance with a determination, redetermination or decision pursuant to Section 51-1-8 NMSA 1978, except upon the ground that the services on the basis of which such benefits were found to be chargeable did not constitute services performed in employment for him and only in the event that he was not a party to such determination, redetermination or decision, or to any other proceedings under the Unemployment Compensation Law in which the character of such services was determined. The employer shall be promptly notified of the decision on his application for redetermination, which shall become final unless, within fifteen days after the mailing of notice thereof to his last known address or in the absence of mailing, within fifteen days after the delivery of such notice, further appeal is initiated pursuant to Subsection D of Section 51-1-8 NMSA 1978.

J. The division shall provide each contributing employer, within ninety days of the end of each calendar quarter, a written determination of benefits chargeable to his account. Such determination shall become conclusive and binding upon the employer for all purposes unless, within thirty days after the mailing of the determination to his last known address or in the absence of mailing, within thirty days after the delivery of such determination, the employer files an application for review and redetermination, setting forth his reason therefor. The employer shall be granted an opportunity for a fair hearing in accordance with [regulations] rules prescribed by the secretary, but no employer shall have standing in any proceeding involving his contribution liability to contest the chargeability to his account of any benefits paid in accordance with a determination, redetermination or decision pursuant to Section 51-1-8 NMSA 1978, except upon the ground that the services on the basis of which such benefits were found to be chargeable did not constitute services performed in employment for him and only in the event that he was not a party to such determination, redetermination or decision, or to any other proceedings under the Unemployment Compensation Law in which the character of such services was determined. The employer shall be promptly notified of the decision on his application for redetermination, which shall become final unless, within fifteen days after the mailing of notice thereof to his last known address or in the absence of mailing, within fifteen days after the delivery of such notice, further appeal is initiated pursuant to Subsection D of Section 51-1-8 NMSA 1978.

K. The contributions, together with interest and penalties thereon imposed by the Unemployment Compensation Law, shall not be assessed nor shall action to collect the same be commenced more than four years after a report showing the amount of the contributions was due. In the case of a false or fraudulent contribution report with intent to evade contributions or a willful failure to file a report of all contributions due, the contributions, together with interest and penalties thereon, may be assessed or an action to collect such contributions may be begun at any time. Before the expiration of such period of limitation, the employer and the secretary may agree in writing to an extension thereof and the period so agreed on may be extended by subsequent agreements in writing. In any case where the assessment has been made and action to collect has been commenced within four years of the due date of any contribution, interest or penalty, including the filing of a warrant of lien by the secretary pursuant to Section 51-1-36 NMSA 1978, such action shall not be subject to any period of limitation.

L. The secretary shall correct any error in the determination of an employer's rate of contribution during the calendar year to which the erroneous rate applies, notwithstanding that notification of the employer's rate of contribution may have been issued and contributions paid pursuant to the notification. Upon issuance by the division of a corrected rate of contribution, the employer shall have the same rights to review and redetermination as provided in Subsection I of this section.

M. [Any] Interest required to be paid on advances to this state's unemployment compensation fund under Title 12 of the Social Security Act shall be paid in a timely manner as required under Section 1202 of Title 12 of the Social Security Act and shall not be paid, directly or indirectly, by the state from amounts in the state's unemployment compensation fund.

N. Notwithstanding the provisions of this section, the rate in schedule 1 of the table provided in Paragraph (4) of Subsection H of this section shall be applied for four calendar years beginning January 1, 1999."

Section 5. A new section of the Unemployment Compensation Law, Section 51-1-59 NMSA 1978, is enacted to read:

"51-1-59. [NEW MATERIAL] FAMILY LEAVE UNEMPLOYMENT COMPENSATION BENEFITS--FINDINGS--PURPOSE--CALCULATION OF BENEFITS.--

A. The legislature finds that:

(1) birth and adoption unemployment compensation recognizes the impact of women in the workplace and responds to the dramatic societal and economic changes resulting from the large number of families where both parents work. It supports a stable workforce by allowing parents to provide the initial care a child needs, to form a strong emotional bond with the child and to establish a secure system of child care that, once in place, will promote the parents' long-term attachment to the workforce;

(2) the initial time period during which a new child is introduced into a home and how the child's care will be assimilated into the working lives of parents is critical; and

(3) many working individuals, especially those in low- and moderate-paying jobs, who need to take parental leave after birth or adoption of a child do not take leave from work because they cannot afford to.

B. The purpose of this section is to help workers who become parents by making wage replacement available to those for whom parental leave heretofore has been merely an illusory right, while still ensuring that the state has adequate resources to pay unemployment compensation benefits.

C. Notwithstanding the provisions of Subsection A of Section 51-1-5 NMSA 1978, an individual who is on leave of absence or who left employment to be with the individual's child during the first year of life, or during the first year following placement with the individual for adoption, shall be eligible to receive benefits with respect to any week if the individual has:

(1) made a claim for benefits with respect to such week in accordance with such rules as the secretary may prescribe; and

(2) been paid wages in at least two quarters of the individual's base period.

D. Notwithstanding the provisions of Section 51-1-7 NMSA 1978, an individual qualifying for benefits pursuant to this section shall not be disqualified because of a determination by the division pursuant to Subsection A or C of Section 51-1-7 NMSA 1978.

E. Weekly benefits, calculated pursuant to Subsection B of Section 51-1-4 NMSA 1978, payable to an individual qualifying for benefits pursuant to this section shall be reduced by:

(1) a payment from the employer received by the individual because of the birth or adoption; and

(2) a payment from a disability insurance plan received by the individual because of the birth or adoption, but only the portion of the payment attributable to an employer's contribution to the plan.

F. Notwithstanding the provisions of Subsection B of Section 51-1-11 NMSA 1978, benefits paid to an individual qualifying pursuant to this section shall not be charged against the accounts of the individual's base-period employers.

G. The secretary shall bill employers that make payments in lieu of contributions for a pro rata share of benefits paid to individuals eligible pursuant to this section.

H. Each employer shall post at a site operated by the employer in a conspicuous place accessible to all employees information relating to the availability of family leave unemployment compensation."

Section 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2001.