SENATE BILL 283
52nd legislature - STATE OF NEW MEXICO - second session, 2016
INTRODUCED BY
Ted Barela
AN ACT
RELATING TO WORKERS' COMPENSATION ACT EXEMPTIONS; EXEMPTING EMPLOYERS THAT PAY LESS THAN EIGHT THOUSAND DOLLARS ($8,000) PER YEAR IN WAGES; PROVIDING THAT A FAMILY MEMBER OF AN EMPLOYER OR EXECUTIVE EMPLOYEE SHALL NOT BE TREATED AS AN EMPLOYEE FOR PURPOSES OF THE WORKERS' COMPENSATION ACT; PROVIDING THAT AN INDIVIDUAL THAT PERFORMS OCCASIONAL AND RECIPROCAL SERVICES FOR AN EMPLOYER SHALL NOT BE TREATED AS AN EMPLOYEE FOR PURPOSES OF THE WORKERS' COMPENSATION ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 52-1-6 NMSA 1978 (being Laws 1990 (2nd S.S.), Chapter 2, Section 4) is amended to read:
"52-1-6. APPLICATION OF PROVISIONS OF ACT.--
A. The provisions of the Workers' Compensation Act shall apply to employers of three or more workers; provided that act shall apply to all employers engaged in activities required to be licensed under the provisions of the Construction Industries Licensing Act regardless of the number of employees. The provisions of the Workers' Compensation Act shall not apply to:
(1) employers of private domestic servants [and farm and ranch laborers]; or
(2) an employer that paid or is obligated to pay cash wages for all services rendered by the employers' workers during the preceding calendar year in an amount less than eight thousand dollars ($8,000).
B. An election to be subject to the Workers' Compensation Act by employers [of private domestic servants or farm and ranch laborers] described in Paragraphs (1) and (2) of Subsection A of this section, by persons for whom the services of qualified real estate salespersons are performed pursuant to Subsection B of Section 52-1-16 NMSA 1978, by employers pursuant to Subsection C of Section 52-1-16 NMSA 1978 or by a partner or self-employed person may be made by filing, in the office of the director, either a sworn statement to the effect that the employer accepts the provisions of the Workers' Compensation Act or an insurance or security undertaking as required by Section 52-1-4 NMSA 1978.
C. Every worker shall be conclusively presumed to have accepted the provisions of the Workers' Compensation Act if [his] the worker's employer is subject to the provisions of that act and has complied with its requirements, including insurance.
D. [Such] Compliance with the provisions of the Workers' Compensation Act, including the provisions for insurance, shall be [and construed to be] a surrender by the employer and the worker of their rights to any other method, form or amount of compensation or determination thereof or to any cause of action at law, suit in equity or statutory or common-law right to remedy or proceeding whatever for or on account of personal injuries or death of the worker than as provided in the Workers' Compensation Act and shall be an acceptance of all of the provisions of the Workers' Compensation Act and shall bind the worker [himself] and, for compensation for [his] the worker's death, shall bind [his] the worker's personal representative, [his] surviving spouse and next of kin, as well as the employer and those conducting [his] the employer's business during bankruptcy or insolvency.
E. The Workers' Compensation Act provides exclusive remedies. No cause of action outside the Workers' Compensation Act shall be brought by an employee or dependent against the employer or [his] the employer's representative, including the insurer, guarantor or surety of any employer, for any matter relating to the occurrence of or payment for any injury or death covered by the Workers' Compensation Act. Nothing in the Workers' Compensation Act, however, shall affect [or be construed to affect] in any way the existence of or the mode of trial of any claim or cause of action that the worker has against any person other than [his] the worker's employer or another employee of [his] the worker's employer, including a management or supervisory employee, or the insurer, guarantor or surety of [his] the worker's employer."
SECTION 2. Section 52-1-16 NMSA 1978 (being Laws 1965, Chapter 295, Section 9, as amended) is amended to read:
"52-1-16. WORKER--[REAL ESTATE SALESPERSON EXCEPTED] EXCEPTIONS.--
A. As used in the Workers' Compensation Act, unless the context otherwise requires, "worker" means any person who has entered into the employment of or works under contract of service or apprenticeship with an employer, except a person whose employment is purely casual and not for the purpose of the employer's trade or business. The term "worker" shall include "employee" and shall include the singular and plural of both sexes. "Worker" includes public employee, as defined in the Workers' Compensation Act, including salaried public officers.
B. For the purposes of the Workers' Compensation Act:
(1) an individual who performs services as a qualified real estate salesperson shall not be treated as an employee and the person for whom the services are performed shall not be treated as an employer;
(2) a family relation of an employer shall not be treated as an employee;
(3) a family relation of an executive employee of a professional or business corporation or limited liability company, employed by the professional or business corporation or limited liability company as a worker, or a sole proprietor shall not be treated as an employee; provided that the executive employee or sole proprietor has affirmatively elected not to accept the provisions of the Workers' Compensation Act pursuant to Section 52-1-6 NMSA 1978; and
(4) an individual that performs a service for an employer shall not be treated as an employee; provided that the service performed is occasional and is for an employer who has or will provide a reciprocal or similar service.
C. For the purpose of Subsection B of this section [a]:
(1) "family relation" means a spouse or a relation within the third degree by blood or marriage, including parents, grandparents, great-grandparents, children, grandchildren, great-grandchildren, brothers, sisters, uncles, aunts, nephews and nieces and spouses of the same; and
(2) "qualified real estate salesperson" means an individual who:
[(1)] (a) is a licensed real estate salesperson, associate broker or broker under contract with a real estate firm;
[(2)] (b) receives substantially all of [his] the individual's remuneration, whether or not paid in cash, for the services performed as a real estate salesperson, associate broker or broker under contract with a real estate firm in direct relation to sales or other output, including the performance of services, rather than to the number of hours worked; and
[(3)] (c) performs services pursuant to a written contract between [himself] the individual and the person for whom the services are performed, and the contract provides that the individual will not be treated as an employee with respect to such services."
SECTION 3. REPEAL.--Section 52-1-6.1 NMSA 1978 (being Laws 1984, Chapter 127, Section 988.3) is repealed.
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