HOUSE BILL 653

47th legislature - STATE OF NEW MEXICO - first session, 2005

INTRODUCED BY

Al Park

AN ACT

RELATING TO EMPLOYMENT; ESTABLISHING A PRESUMPTION OF EMPLOYER AND EMPLOYEE RELATIONSHIP; SETTING STANDARDS TO INDICATE WHEN A WORKER IS AN INDEPENDENT CONTRACTOR AND NOT AN EMPLOYEE.

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

     Section 1. A new section of Chapter 50, Article 4 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] EMPLOYER AND EMPLOYEE RELATIONSHIP-- INDEPENDENT CONTRACTOR.--For purposes of the employer and employee relationship in this state, except as otherwise provided by law, a person providing labor or services for compensation shall be considered an employee and not an "independent contractor" unless the following standards indicative of an independent contractor are met:

          A. the person providing labor or services is free from direction and control over the means and manner of providing the labor or services, subject only to the right of the person for whom the labor or services are provided to specify the desired results;

          B. the person providing labor or services is responsible for obtaining business registrations or licenses required by state law or local ordinance for the person to provide the labor or services;

          C. the person providing labor or services furnishes the tools or equipment necessary to provide the labor or services;

          D. the person providing labor or services has the authority to hire and fire employees to perform the labor or services;

          E. payment for labor or services is made upon completion of the performance of specific portions of a project or is made on the basis of a periodic retainer; and

          F. the person providing labor or services represents to the public that the labor or services are to be provided by an independently established business. A person is engaged in an independently established business when four or more of the following circumstances exist:

                (1) labor or services are primarily performed at a location separate from the person's residence or in a specific portion of the residence that is set aside for performing labor or services;

                (2) commercial advertising or business cards are purchased by the person, or the person is a member of a trade or professional association;

                (3) telephone or email listings used for the labor or services are different from the person's personal listings;

                (4) labor or services are performed only pursuant to a written contract;

                (5) labor or services are performed for two or more persons within a period of one year; or

                (6) the person assumes financial responsibility for errors and omissions in labor or services as evidenced by insurance, performance bonds and warranties relating to the labor or services being provided."

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