0001|                           SENATE BILL 492
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0002|     43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003|                            INTRODUCED BY
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0004|                            CISCO MCSORLEY
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0005|     
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0006|                                   
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0007|     
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0008|                                   
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0009|     
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0010|                                AN ACT
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0011|     RELATING TO UNEMPLOYMENT COMPENSATION; PROVIDING THAT CERTAIN
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0012|     DEMONSTRATION SERVICES DO NOT QUALIFY AS EMPLOYMENT FOR THE
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0013|     PURPOSES OF THE UNEMPLOYMENT COMPENSATION LAW; AMENDING A
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0014|     SECTION OF THE UNEMPLOYMENT COMPENSATION LAW.
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0015|     
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0016|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0017|          Section 1.  Section 51-1-42 NMSA 1978 (being Laws 1936
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0018|     (S.S.), Chapter 1, Section 19, as amended) is amended to read:
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0019|          "51-1-42.  DEFINITIONS.--As used in the Unemployment
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0020|     Compensation Law:
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0021|               A.  "base period" means the first four of the last
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0022|     five completed calendar quarters immediately preceding the
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0023|     first day of an individual's benefit year;
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0024|               B.  "benefits" means the cash unemployment
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0025|     compensation payments payable to an eligible individual
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0001|     pursuant to Section 51-1-4 NMSA 1978 with respect to his weeks
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0002|     of unemployment;
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0003|               C.  "contributions" means the money payments
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0004|     required by Section 51-1-9 NMSA 1978 to be made into the
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0005|     <s>[unemployment compensation]</s> fund by an employer on account of
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0006|     having individuals performing services for him;
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0007|               D.  "employing unit" means any individual or type of
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0008|     organization, including any partnership, association,
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0009|     cooperative, trust, estate, joint-stock company, agricultural
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0010|     enterprise, insurance company or corporation, whether domestic
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0011|     or foreign, or the receiver, trustee in bankruptcy, trustee or
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0012|     successor thereof, household, fraternity or club, the legal
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0013|     representative of a deceased person or any state or local
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0014|     government entity to the extent required by law to be covered
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0015|     as an employer, which has in its employ one or more individuals
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0016|     performing services for it within this state.  All individuals
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0017|     performing services for any employing unit which maintains two
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0018|     or more separate establishments within this state shall be
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0019|     deemed to be employed by a single employing unit for all the
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0020|     purposes of the Unemployment Compensation Law.  Individuals
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0021|     performing services for contractors, subcontractors or agents
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0022|     which are performing work or services for an employing unit, as
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0023|     described in this subsection, which is within the scope of the
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0024|     employing unit's usual trade, occupation, profession or
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0025|     business shall be deemed to be in the employ of the employing
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0001|     unit for all purposes of the Unemployment Compensation Law
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0002|     unless such contractor, subcontractor or agent is itself an
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0003|     employer within the provision of Subsection E of this section;
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0004|               E.  "employer" includes:
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0005|                    (1)  any employing unit which:
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0006|                         (a)  unless otherwise provided in this
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0007|     section, paid for service in employment as defined in
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0008|     Subsection F of this section wages of four hundred fifty
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0009|     dollars ($450) or more in any calendar quarter in either the
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0010|     current or preceding calendar year or had in employment, as
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0011|     defined in Subsection F of this section, for some portion of a
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0012|     day in each of twenty different calendar weeks during either
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0013|     the current or the preceding calendar year, and irrespective of
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0014|     whether the same individual was in employment in each such day,
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0015|     at least one individual;
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0016|                         (b)  for the purposes of Subparagraph (a)
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0017|     of this paragraph, if any week includes both December 31 and
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0018|     January 1, the days of that week up to January 1 shall be
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0019|     deemed one calendar week and the days beginning January 1,
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0020|     another such week; and
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0021|                         (c)  for purposes of defining an
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0022|     "employer" under Subparagraph (a) of this paragraph, the wages
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0023|     or remuneration paid to individuals performing services in
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0024|     employment in agricultural labor or domestic services as
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0025|     provided in Paragraphs (6) and (7) of Subsection F of this
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0001|     section shall not be taken into account; except that any
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0002|     employing unit determined to be an employer of agricultural
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0003|     labor under Paragraph (6) of Subsection F of this section shall
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0004|     be an employer under Subparagraph (a) of this paragraph so long
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0005|     as the employing unit is paying wages or remuneration for
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0006|     services other than agricultural services;
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0007|                    (2)  any individual or type of organization
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0008|     that acquired the trade or business or substantially all of the
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0009|     assets thereof, of an employing unit which at the time of such
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0010|     acquisition was an employer subject to the Unemployment
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0011|     Compensation Law; provided that where such an acquisition takes
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0012|     place, the secretary may postpone activating the separate
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0013|     account pursuant to Subsection A of Section 51-1-11 NMSA 1978
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0014|     until such time as the successor employer has employment as
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0015|     defined in Subsection F of this section;
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0016|                    (3)  any employing unit which acquired all or
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0017|     part of the organization, trade, business or assets of another
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0018|     employing unit and which, if treated as a single unit with such
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0019|     other employing unit or part thereof, would be an employer
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0020|     under Paragraph (1) of this subsection;
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0021|                    (4)  any employing unit not an employer by
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0022|     reason of any other paragraph of this subsection, 
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0023|                         (a)  for which, within either the current
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0024|     or preceding calendar year, service is or was performed with
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0025|     respect to which such employing unit is liable for any federal
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0001|     tax against which credit may be taken for contributions
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0002|     required to be paid into a state unemployment fund, or 
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0003|                         (b)  which, as a condition for approval
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0004|     of the Unemployment Compensation Law for full tax credit
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0005|     against the tax imposed by the Federal Unemployment Tax Act, is
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0006|     required, pursuant to such act, to be an "employer" under the
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0007|     Unemployment Compensation Law;
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0008|                    (5)  any employing unit which, having become an
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0009|     employer under Paragraph (1), (2), (3) or (4) of this
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0010|     subsection, has not, under Section 51-1-18 NMSA 1978, ceased to
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0011|     be an employer subject to the Unemployment Compensation Law;
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0012|                    (6)  for the effective period of its election
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0013|     pursuant to Section 51-1-18 NMSA 1978, any other employing unit
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0014|     which has elected to become fully subject to the Unemployment
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0015|     Compensation Law; and
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0016|                    (7)  any employing unit for which any services
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0017|     performed in its employ are deemed to be performed in this
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0018|     state pursuant to an election under an arrangement entered into
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0019|     in accordance with Subsection A of Section 51-1-50 NMSA 1978;
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0020|               F.  "employment" means:
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0021|                    (1)  any service, including service in
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0022|     interstate commerce, performed for wages or under any contract
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0023|     of hire, written or oral, express or implied;
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0024|                    (2)  and includes an individual's entire
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0025|     service, performed within or both within and without this state
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0001|     if:
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0002|                         (a)  the service is primarily localized
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0003|     in this state with services performed outside the state being
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0004|     only incidental thereto; or
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0005|                         (b)  the service is not localized in any
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0006|     state but some of the service is performed in this state and: 
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0007|     1) the base of operations or, if there is no base of
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0008|     operations, <s>[then]</s> the place from which such service is
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0009|     directed or controlled, is in this state; or 2) the base of
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0010|     operations or place from which such service is directed or
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0011|     controlled is not in any state in which some part of the
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0012|     service is performed but the individual's residence is in this
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0013|     state;
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0014|                    (3)  services performed within this state but
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0015|     not covered under Paragraph (2) of this subsection if
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0016|     contributions or payments in lieu of contributions are not
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0017|     required and paid with respect to such services under an
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0018|     unemployment compensation law of any other state, the federal
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0019|     government or Canada;
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0020|                    (4)  services covered by an election pursuant
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0021|     to Section 51-1-18 NMSA 1978 and services covered by an
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0022|     election duly approved by the secretary in accordance with an
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0023|     arrangement pursuant to Paragraph (1) of Subsection A of
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0024|     Section 51-1-50 NMSA 1978 shall be deemed to be employment
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0025|     during the effective period of such election;
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0001|                    (5)  services performed by an individual for an
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0002|     employer for wages or other remuneration unless and until it is
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0003|     established by a preponderance of evidence that:
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0004|                         (a)  such individual has been and will
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0005|     continue to be free from control or direction over the
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0006|     performance of such services both under his contract of service
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0007|     and in fact;
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0008|                         (b)  such service is either outside the
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0009|     usual course of business for which such service is performed or
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0010|     that such service is performed outside of all the places of
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0011|     business of the enterprise for which such service is performed;
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0012|     and
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0013|                         (c)  such individual is customarily
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0014|     engaged in an independently established trade, occupation,
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0015|     profession or business of the same nature as that involved in
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0016|     the contract of service;
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0017|                    (6)  service performed after December 31, 1977
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0018|     by an individual in agricultural labor as defined in Subsection
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0019|     Q of this section if:
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0020|                         (a)  such service is performed for an
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0021|     employing unit which:  1) paid remuneration in cash of twenty
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0022|     thousand dollars ($20,000) or more to individuals in such
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0023|     employment during any calendar quarter in either the current or
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0024|     the preceding calendar year; or 2) employed in agricultural
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0025|     labor ten or more individuals for some portion of a day in each
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0001|     of twenty different calendar weeks in either the current or
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0002|     preceding calendar year, whether or not such weeks were
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0003|     consecutive, and regardless of whether such individuals were
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0004|     employed at the same time;
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0005|                         (b)  such service is not performed before
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0006|     January 1, 1980 by an individual who is an alien admitted to
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0007|     the United States to perform service in agricultural labor
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0008|     pursuant to Sections 214(c) and 101(15)(H) of the Immigration
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0009|     and Nationality Act; and
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0010|                         (c)  for purposes of this paragraph, any
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0011|     individual who is a member of a crew furnished by a crew leader
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0012|     to perform service in agricultural labor for a farm operator or
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0013|     other person shall be treated as an employee of such crew
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0014|     leader:  1) if such crew leader meets the requirements of a
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0015|     crew leader as defined in Subsection L of this section; or 2)
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0016|     substantially all the members of such crew operate or maintain
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0017|     mechanized agricultural equipment which is provided by the crew
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0018|     leader; and 3) the individuals performing such services are
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0019|     not, by written agreement or in fact, within the meaning of
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0020|     Paragraph (5) of this subsection, performing services in
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0021|     employment for the farm operator or other person;
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0022|                    (7)  service performed after December 31, 1977
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0023|     by an individual in domestic service in a private home, local
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0024|     college club or local chapter of a college fraternity or
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0025|     sorority for a person or organization that paid cash
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0001|     remuneration of one thousand dollars ($1,000) in any calendar
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0002|     quarter in the current or preceding calendar year to
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0003|     individuals performing such services;
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0004|                    (8)  service performed after December 31, 1971
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0005|     by an individual in the employ of a religious, charitable,
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0006|     educational or other organization but only if the following
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0007|     conditions are met:
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0008|                         (a)  the service is excluded from
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0009|     "employment" as defined in the Federal Unemployment Tax Act
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0010|     solely by reason of Section 3306(c)(8) of that act; and
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0011|                         (b)  the organization meets the
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0012|     requirements of "employer" as provided in Subparagraph (a) of
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0013|     Paragraph (1) of Subsection E of this section;
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0014|                    (9)  service of an individual who is a citizen
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0015|     of the United States, performed outside the United States,
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0016|     except in Canada, after December 31, 1971 in the employ of an
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0017|     American employer (other than service which is deemed
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0018|     "employment" under the provisions of Paragraph (2) of this
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0019|     subsection or the parallel provisions of another state's law),
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0020|     if:
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0021|                         (a)  the employer's principal place of
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0022|     business in the United States is located in this state;
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0023|                         (b)  the employer has no place of
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0024|     business in the United States, but:  1) the employer is an
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0025|     individual who is a resident of this state; 2) the employer is
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0001|     a corporation which is organized under the laws of this state;
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0002|     or 3) the employer is a partnership or a trust and the number
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0003|     of the partners or trustees who are residents of this state is
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0004|     greater than the number who are residents of any one other
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0005|     state; or
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0006|                         (c)  none of the criteria of
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0007|     Subparagraphs (a) and (b) of this paragraph are met, but the
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0008|     employer has elected coverage in this state or, the employer
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0009|     having failed to elect coverage in any state, the individual
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0010|     has filed a claim for benefits, based on such service, under
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0011|     the law of this state.
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0012|          "American employer" for purposes of <u>this</u> paragraph <s>[(9)
</s>    |
<s></s>0013| <s>    of this subsection]</s> means a person who is:  1) an individual
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0014|     who is a resident of the United States; 2) a partnership if
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0015|     two-thirds or more of the partners are residents of the United
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0016|     States; 3) a trust if all of the trustees are residents of the
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0017|     United States; or 4) a corporation organized under the laws of
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0018|     the United States or of any state.  For the purposes of <u>this</u>
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0019|     paragraph <s>[(9) of this subsection]</s>, "United States" includes
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0020|     the United States, the District of Columbia, the commonwealth
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0021|     of Puerto Rico and the Virgin Islands;
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0022|                    (10)  notwithstanding any other provisions of
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0023|     this subsection, service with respect to which a tax is
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0024|     required to be paid under any federal law imposing a tax
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0025|     against which credit may be taken for contributions required to
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0001|     be paid into a state unemployment fund or which as a condition
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0002|     for full tax credit against the tax imposed by the Federal
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0003|     Unemployment Tax Act is required to be covered under the
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0004|     Unemployment Compensation Law;
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0005|                    (11)  "employment" shall not include:
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0006|                         (a)  service performed in the employ of:
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0007|     1) a church or convention or association of churches; or 2) an
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0008|     organization which is operated primarily for religious purposes
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0009|     and which is operated, supervised, controlled or principally
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0010|     supported by a church or convention or association of churches;
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0011|                         (b)  service performed by a duly
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0012|     ordained, commissioned or licensed minister of a church in the
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0013|     exercise of his ministry or by a member of a religious order in
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0014|     the exercise of duties required by such order;
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0015|                         (c)  service performed by an individual
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0016|     in the employ of his son, daughter or spouse, and service
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0017|     performed by a child under the age of majority in the employ of
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0018|     his father or mother;
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0019|                         (d)  service performed in the employ of
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0020|     the United States government or an instrumentality of the
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0021|     United States immune under the constitution of the United
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0022|     States from the contributions imposed by the Unemployment
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0023|     Compensation Law except that to the extent that the congress of
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0024|     the United States shall permit states to require any
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0025|     instrumentalities of the United States to make payments into an
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0001|     unemployment fund under a state unemployment compensation act,
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0002|     all of the provisions of the Unemployment Compensation Law
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0003|     shall be applicable to such instrumentalities, and to service
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0004|     performed for such instrumentalities in the same manner, to the
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0005|     same extent and on the same terms as to all other employers,
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0006|     employing units, individuals and services; provided, that if
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0007|     this state shall not be certified for any year by the secretary
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0008|     of labor of the United States under Section 3304 of the federal
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0009|     Internal Revenue Code (26 U.S.C. Section 3304), the payments
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0010|     required of such instrumentalities with respect to such year
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0011|     shall be refunded by the department from the fund in the same
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0012|     manner and within the same period as is provided in Subsection
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0013|     D of Section 51-1-36 NMSA 1978 with respect to contributions
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0014|     erroneously collected;
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0015|                         (e)  service performed in a facility
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0016|     conducted for the purpose of carrying out a program of
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0017|     rehabilitation for individuals whose earning capacity is
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0018|     impaired by age or physical or mental deficiency or injury or
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0019|     providing remunerative work for individuals who because of
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0020|     their impaired physical or mental capacity cannot be readily
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0021|     absorbed in the competitive labor market, by an individual
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0022|     receiving such rehabilitation or remunerative work;
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0023|                         (f)  service with respect to which
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0024|     unemployment compensation is payable under an unemployment
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0025|     compensation system established by an act of congress;
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0001|                         (g)  service performed in the employ of a
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0002|     foreign government, including service as a consular or other
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0003|     officer or employee or a nondiplomatic representative;
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0004|                         (h)  service performed by an individual
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0005|     for a person as an insurance agent or as an insurance
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0006|     solicitor, if all such service performed by such individual for
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0007|     such person is performed for remuneration solely by way of
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0008|     commission;
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0009|                         (i)  service performed by an individual
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0010|     under the age of eighteen in the delivery or distribution of
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0011|     newspapers or shopping news, not including delivery or
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0012|     distribution to any point for subsequent delivery or
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0013|     distribution;
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0014|                         (j)  service covered by an election duly
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0015|     approved by the agency charged with the administration of any
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0016|     other state or federal unemployment compensation law, in
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0017|     accordance with an arrangement pursuant to Paragraph (1) of
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0018|     Subsection A of Section 51-1-50 NMSA 1978 during the effective
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0019|     period of such election;
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0020|                         (k)  service performed, as part of an
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0021|     unemployment work-relief or work-training program assisted or
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0022|     financed in whole or part by any federal agency or an agency of
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0023|     a state or political subdivision thereof, by an individual
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0024|     receiving such work relief or work training;
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0025|                         (l)  service performed by an individual
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0001|     who is enrolled at a nonprofit or public educational
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0002|     institution which normally maintains a regular faculty and
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0003|     curriculum and normally has a regularly organized body of
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0004|     students in attendance at the place where its educational
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0005|     activities are carried on as a student in a full-time program,
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0006|     taken for credit at such institution, which combines academic
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0007|     instruction with work experience, if the service is an integral
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0008|     part of such program, and the institution has so certified to
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0009|     the employer, except that this subparagraph shall not apply to
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0010|     service performed in a program established for or on behalf of
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0011|     an employer or group of employers;
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0012|                         (m)  service performed in the employ of a
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0013|     hospital, if the service is performed by a patient of the
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0014|     hospital, or services performed by an inmate of a custodial or
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0015|     penal institution for a governmental entity or nonprofit
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0016|     organization;
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0017|                         (n)  service performed by real estate
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0018|     salesmen for others when the services are performed for
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0019|     remuneration solely by way of commission; 
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0020|                         (o)  service performed in the employ of a
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0021|     school, college or university if such service is performed by a
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0022|     student who is enrolled and is regularly attending classes at
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0023|     such school, college or university;
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0024|                         (p)  service performed by an individual
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0025|     for a fixed or contract fee officiating at a sporting event
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0001|     which is conducted by or under the auspices of a nonprofit or
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0002|     governmental entity if that person is not otherwise an employee
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0003|     of the entity conducting the sporting event; <s>[or]</s>
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0004|                         <u>(q)  service performed by an individual,
</u>    |
<u></u>0005| <u>    on a temporary or part-time basis, involving product
</u>    |
<u></u>0006| <u>    demonstrations, coupon demonstrations, special event
</u>    |
<u></u>0007| <u>    demonstrations or merchandise demonstrations, when the service
</u>    |
<u></u>0008| <u>    is performed by the individual pursuant to a contract with
</u>    |
<u></u>0009| <u>    another person or company and the contract provides that the
</u>    |
<u></u>0010| <u>    individual is not an employee of the other person or company;
</u>    |
<u></u>0011| <u>    or</u>
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0012|                         <s>[(q)]</s> <u>(r)</u>  service performed for a
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0013|     private for-profit person or entity by an individual as a
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0014|     landman if substantially all remuneration paid in cash or
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0015|     otherwise for the performance of the services is directly
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0016|     related to the completion by the individual of the specific
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0017|     tasks contracted for rather than to the number of hours worked
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0018|     by the individual.  For the purposes of this subparagraph,
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0019|     "landman" means a land professional who has been engaged
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0020|     primarily in:  1) negotiating for the acquisition or
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0021|     divestiture of mineral rights; 2) negotiating business
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0022|     agreements that provide for the exploration for or development
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0023|     of minerals; 3) determining ownership of minerals through the
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0024|     research of public and private records; and 4) reviewing the
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0025|     status of title, curing title defects and otherwise reducing
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0001|     title risk associated with ownership of minerals; managing
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0002|     rights or obligations derived from ownership of interests and
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0003|     minerals; or utilizing or pooling of interest in minerals; and
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0004|                    (12)  for the purposes of this subsection, if
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0005|     the services performed during one-half or more of any pay
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0006|     period by an individual for the person employing him constitute
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0007|     employment, all the services of such individual for such period
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0008|     shall be deemed to be employment but, if the services performed
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0009|     during more than one-half of any such pay period by an
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0010|     individual for the person employing him do not constitute
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0011|     employment, then none of the services of such individual for
    |
0012|     such period shall be deemed to be employment.  As used in this
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0013|     paragraph, the term "pay period" means a period, of not more
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0014|     than thirty-one consecutive days, for which a payment of
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0015|     remuneration is ordinarily made to the individual by the person
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0016|     employing him.  This paragraph shall not be applicable with
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0017|     respect to services performed in a pay period by an individual
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0018|     for the person employing him where any of such service is
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0019|     excepted by Subparagraph (f) of Paragraph (11) of this
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0020|     subsection;
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0021|               G.  "employment office" means a free public
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0022|     employment office, or branch thereof, operated by this state or
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0023|     maintained as a part of a state-controlled system of public
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0024|     employment offices;
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0025|               H.  "fund" means the unemployment compensation fund
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0001|     established by the Unemployment Compensation Law to which all
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0002|     contributions and payments in lieu of contributions required
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0003|     under the Unemployment Compensation Law and from which all
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0004|     benefits provided under the Unemployment Compensation Law shall
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0005|     be paid;
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0006|               I.  "unemployment" means, with respect to an
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0007|     individual, any week during which he performs no services and
    |
0008|     with respect to which no wages are payable to him and during
    |
0009|     which he is not engaged in self-employment or receives an award
    |
0010|     of back pay for loss of employment.  The secretary shall
    |
0011|     prescribe by regulation what constitutes part-time and
    |
0012|     intermittent employment, partial employment and the conditions
    |
0013|     under which individuals engaged in such employment are eligible
    |
0014|     for partial unemployment benefits;
    |
0015|               J.  "state", when used in reference to any state
    |
0016|     other than New Mexico, includes, in addition to the states of
    |
0017|     the United States, the District of Columbia, the commonwealth
    |
0018|     of Puerto Rico and the Virgin Islands;
    |
0019|               K.  "unemployment compensation administration fund"
    |
0020|     means the fund established by Subsection A of Section 51-1-34
    |
0021|     NMSA 1978 from which administrative expenses under the
    |
0022|     Unemployment Compensation Law shall be paid.  "Employment
    |
0023|     security department fund" means the fund established by
    |
0024|     Subsection B of Section 51-1-34 NMSA 1978 from which certain
    |
0025|     administrative expenses under the Unemployment Compensation Law
    |
0001|     shall be paid;
    |
0002|               L.  "crew leader" means a person who:
    |
0003|                    (1)  holds a valid certificate of registration
    |
0004|     as a crew leader or farm labor contractor under the Migrant and
    |
0005|     Seasonal Agricultural Worker Protection Act;
    |
0006|                    (2)  furnishes individuals to perform services
    |
0007|     in agricultural labor for any other person;
    |
0008|                    (3)  pays, either on his own behalf or on
    |
0009|     behalf of such other person, the individuals so furnished by
    |
0010|     him for service in agricultural labor; and
    |
0011|                    (4)  has not entered into a written agreement
    |
0012|     with the other person for whom he furnishes individuals in
    |
0013|     agricultural labor that such individuals will be the employees
    |
0014|     of the other person;
    |
0015|               M.  "week" means such period of seven consecutive
    |
0016|     days, as the secretary may by regulation prescribe.  The
    |
0017|     secretary may by regulation prescribe that a week shall be
    |
0018|     deemed to be "in", "within" or "during" that benefit year which
    |
0019|     includes the greater part of such week;
    |
0020|               N.  "calendar quarter" means the period of three
    |
0021|     consecutive calendar months ending on March 31, June 30,
    |
0022|     September 30 or December 31;
    |
0023|               O.  "insured work" means services performed for
    |
0024|     employers who are covered under the Unemployment Compensation
    |
0025|     Law;
    |
0001|               P.  "benefit year" with respect to any individual
    |
0002|     means the one-year period beginning with the first day of the
    |
0003|     first week of unemployment with respect to which the individual
    |
0004|     first files a claim for benefits in accordance with Subsection
    |
0005|     A of Section 51-1-8 NMSA 1978 and thereafter the one-year
    |
0006|     period beginning with the first day of the first week of
    |
0007|     unemployment with respect to which the individual next files
    |
0008|     such a claim for benefits after the termination of his last
    |
0009|     preceding benefit year; provided that at the time of filing
    |
0010|     such a claim the individual has been paid the wages for insured
    |
0011|     work required under Paragraph (5) of Subsection A of Section
    |
0012|     51-1-5 NMSA 1978;
    |
0013|               Q.  "agricultural labor" includes all services
    |
0014|     performed:
    |
0015|                    (1)  on a farm, in the employ of any person, in
    |
0016|     connection with cultivating the soil or in connection with
    |
0017|     raising or harvesting any agricultural or horticultural
    |
0018|     commodity, including the raising, shearing, feeding, caring
    |
0019|     for, training and management of livestock, bees, poultry and
    |
0020|     fur-bearing animals and wildlife;
    |
0021|                    (2)  in the employ of the owner or tenant or
    |
0022|     other operator of a farm, in connection with the operation,
    |
0023|     management, conservation or maintenance of such farm and its
    |
0024|     tools and equipment, if the major part of such service is
    |
0025|     performed on a farm;
    |
0001|                    (3)  in connection with the operation or
    |
0002|     maintenance of ditches, canals, reservoirs or waterways used
    |
0003|     exclusively for supplying and storing water for farming
    |
0004|     purposes when such ditches, canals, reservoirs or waterways are
    |
0005|     owned and operated by the farmers using the water stored or
    |
0006|     carried therein; and
    |
0007|                    (4)  in handling, planting, drying, packing,
    |
0008|     packaging, processing, freezing, grading, storing or delivery
    |
0009|     to storage or to market or to a carrier for transportation to
    |
0010|     market any agricultural or horticultural commodity but only if
    |
0011|     such service is performed as an incident to ordinary farming
    |
0012|     operations.  The provisions of this paragraph shall not be
    |
0013|     deemed to be applicable with respect to service performed in
    |
0014|     connection with commercial canning or commercial freezing or in
    |
0015|     connection with any agricultural or horticultural commodity
    |
0016|     after its delivery to a terminal market for distribution for
    |
0017|     consumption.
    |
0018|          As used in this subsection, the term "farm" includes
    |
0019|     stock, dairy, poultry, fruit, fur-bearing animal and truck
    |
0020|     farms, plantations, ranches, nurseries, greenhouses, ranges and
    |
0021|     orchards;
    |
0022|               R.  "payments in lieu of contributions" means the
    |
0023|     money payments made into the fund by an employer pursuant to
    |
0024|     the provisions of Subsection A of Section 51-1-13 NMSA 1978;
    |
0025|               S.  "department" means the labor department; and
    |
0001|               T.  "wages" means all remuneration for services,
    |
0002|     including commissions and bonuses and the cash value of all
    |
0003|     remuneration in any medium other than cash.  The reasonable
    |
0004|     cash value of remuneration in any medium other than cash shall
    |
0005|     be established and determined in accordance with regulations
    |
0006|     prescribed by the secretary; provided that the term "wages"
    |
0007|     shall not include:
    |
0008|                    (1)  subsequent to December 31, 1977, that part
    |
0009|     of the remuneration in excess of the base wage as determined by
    |
0010|     the secretary for each calendar year.  The base wage upon which
    |
0011|     contribution shall be paid during any calendar year shall be
    |
0012|     sixty-five percent of the state's average annual earnings
    |
0013|     computed by the department by dividing total wages reported to
    |
0014|     the department by contributing employers for the second
    |
0015|     preceding calendar year before the calendar year the computed
    |
0016|     base wage becomes effective by the average annual employment
    |
0017|     reported by contributing employers for the same period rounded
    |
0018|     to the next higher multiple of one hundred dollars ($100);
    |
0019|     provided that the base wage so computed for any calendar year
    |
0020|     shall not be less than seven thousand dollars ($7,000).  Wages
    |
0021|     paid by an employer to an individual in his employ during any
    |
0022|     calendar year in excess of the base wage in effect for that
    |
0023|     calendar year shall be reported to the department but shall be
    |
0024|     exempt from the payment of contributions unless such wages paid
    |
0025|     in excess of the base wage become subject to tax under a
    |
0001|     federal law imposing a tax against which credit may be taken
    |
0002|     for contributions required to be paid into a state unemployment
    |
0003|     fund;
    |
0004|                    (2)  the amount of any payment with respect to
    |
0005|     services performed after June 30, 1941 to or on behalf of an
    |
0006|     individual in its employ under a plan or system established by
    |
0007|     an employing unit which makes provision for individuals in its
    |
0008|     employ generally or for a class or classes of such individuals,
    |
0009|     including any amount paid by an employing unit for insurance or
    |
0010|     annuities, or into a fund, to provide for any such payment, on
    |
0011|     account of:
    |
0012|                         (a)  retirement if such payments are made
    |
0013|     by an employer to or on behalf of any employee under a
    |
0014|     simplified employee pension plan that provides for payments by
    |
0015|     an employer in addition to the salary or other remuneration
    |
0016|     normally payable to such employee or class of such employees
    |
0017|     and does not include any payments which represent deferred
    |
0018|     compensation or other reduction of an employee's normal taxable
    |
0019|     wages or remuneration or any payments made to a third party on
    |
0020|     behalf of an employee as part of an agreement of deferred
    |
0021|     remuneration;
    |
0022|                         (b)  sickness or accident disability if
    |
0023|     such payments are received under a workers' compensation or
    |
0024|     occupational disease disablement law;
    |
0025|                         (c)  medical and hospitalization expenses
    |
0001|     in connection with sickness or accident disability; or
    |
0002|                         (d)  death; 
    |
0003|     provided the individual in its employ has not the option to
    |
0004|     receive, instead of provision for such death benefit, any part
    |
0005|     of such payment, or, if such death benefit is insured, any part
    |
0006|     of the premiums or contributions to premiums paid by his
    |
0007|     employing unit and has not the right under the provisions of
    |
0008|     the plan or system or policy of insurance providing for such
    |
0009|     death benefit to assign such benefit, or to receive a cash
    |
0010|     consideration in lieu of such benefit either upon his
    |
0011|     withdrawal from the plan or system providing for such benefit
    |
0012|     or upon termination of such plan or system or policy of
    |
0013|     insurance or of his service with such employing unit;
    |
0014|                    (3)  remuneration for agricultural labor paid
    |
0015|     in any medium other than cash;
    |
0016|                    (4)  any payment made to, or on behalf of, an
    |
0017|     employee or an employee's beneficiary under a cafeteria plan
    |
0018|     within the meaning of Section 125 of the federal Internal
    |
0019|     Revenue Code of 1986;
    |
0020|                    (5)  any payment made, or benefit furnished to
    |
0021|     or for the benefit of an employee if at the time of such
    |
0022|     payment or such furnishing it is reasonable to believe that the
    |
0023|     employee will be able to exclude such payment or benefit from
    |
0024|     income under Section 129 of the federal Internal Revenue Code
    |
0025|     of 1986; or
    |
0001|                    (6)  any payment made by an employer to a
    |
0002|     survivor or the estate of a former employee after the calendar
    |
0003|     year in which such employee died. <s>[The provisions of this
</s>    |
<s></s>0004| <s>    section shall become effective July 1, 1993.]</s>"
    |
0005|          Section 2.  EFFECTIVE DATE.--The effective date of the
    |
0006|     provisions of this act is July 1, 1997.  
    |
0007|   
    |
0008|                      FORTY-THIRD LEGISLATURE
    |
0009|                        FIRST SESSION, 1997
    |
0010|   
    |
0011|   
    |
0012|                                               February 19, 1997
    |
0013|   
    |
0014|   Mr. President:
    |
0015|   
    |
0016|       Your WAYS AND MEANS COMMITTEE, to whom has been
    |
0017|   referred
    |
0018|   
    |
0019|                          SENATE BILL 492
    |
0020|   
    |
0021|   has had it under consideration and reports same with
    |
0022|   recommendation that it DO PASS, and thence referred to the
    |
0023|   CORPORATIONS & TRANSPORTATION COMMITTEE.
    |
0024|   
    |
0025|                                Respectfully submitted,
    |
0001|   
    |
0002|   
    |
0003|   
    |
0004|                                
    |
0005|   __________________________________
    |
0006|                                Carlos R. Cisneros, Chairman 
    |
0007|   
    |
0008|   
    |
0009|   
    |
0010|   Adopted_______________________   Not
    |
0011|   Adopted_______________________
    |
0012|             (Chief Clerk)                          (Chief Clerk)
    |
0013|   
    |
0014|   
    |
0015|                     Date ________________________
    |
0016|   
    |
0017|   
    |
0018|   The roll call vote was <u> 8 </u> For <u> 0 </u> Against
    |
0019|           Yes:    8
    |
0020|           No:     0
    |
0021|                Excused:     Nava
    |
0022|           Absent: None
    |
0023|   
    |
0024|   
    |
0025|   S0492WM1
    |
0001|   
    |
0002|     
    |
0003|   
    |
0004|                      FORTY-THIRD LEGISLATURE
    |
0005|                        FIRST SESSION, 1997             SB 492/a
    |
0006|   
    |
0007|                                               February 26, 1997
    |
0008|   
    |
0009|   Mr. President:
    |
0010|   
    |
0011|       Your CORPORATIONS & TRANSPORTATION COMMITTEE, to
    |
0012|   whom has been referred
    |
0013|   
    |
0014|                          SENATE BILL 492
    |
0015|   
    |
0016|   has had it under consideration and reports same with
    |
0017|   recommendation that it DO PASS, amended as follows:
    |
0018|   
    |
0019|       1.  On page 14, line 25, after "individual" insert "who is
    |
0020|   an independent contractor".
    |
0021|   
    |
0022|       2.  On page 15, line 4, strike "individual" and insert in
    |
0023|   lieu thereof "independent contractor".
    |
0024|   
    |
0025|       3.  On page 15, line 4, before "contract" insert "written".
    |
0001|   
    |
0002|       4.  On page 15, strike lines 5 and 6 in their entirety and
    |
0003|   insert in lieu thereof "another person whose principal business
    |
0004|   is obtaining the services of independent contractors to perform
    |
0005|   demonstrations for third parties; or".
    |
0006|   
    |
0007|                                Respectfully submitted,
    |
0008|   
    |
0009|   
    |
0010|                                
    |
0011|   __________________________________
    |
0012|                                Roman M. Maes, III, Chairman 
    |
0013|   
    |
0014|   
    |
0015|   Adopted_______________________   Not
    |
0016|   Adopted_______________________
    |
0017|             (Chief Clerk)                          (Chief Clerk)
    |
0018|   
    |
0019|                     Date ________________________
    |
0020|   
    |
0021|   
    |
0022|   The roll call vote was <u> 6 </u> For <u> 0 </u> Against
    |
0023|           Yes:    6
    |
0024|           No:     0
    |
0025|                Excused:     Fidel, McKibben, Robinson, Maes
    |
0001|           Absent: None
    |
0002|   
    |
0003|   S0492CT1                                            .117714.1
    |
0004|   
    |