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AN ACT

RELATING TO UNEMPLOYMENT COMPENSATION; INCREASING THE WEEKLY

BENEFIT AMOUNT; INCREASING THE DEPENDENT ALLOWANCE BENEFIT;

CHANGING THE CRITERIA FOR CONTRIBUTION RATE SCHEDULES;

PROVIDING A CERTAIN CONTRIBUTION RATE SCHEDULE FOR A LIMITED

PERIOD; CREATING THE STATE UNEMPLOYMENT TRUST FUND; PROVIDING

DISTRIBUTIONS TO THE FUND; REPEALING CERTAIN CONTINGENT

SECTIONS OF THE UNEMPLOYMENT COMPENSATION LAW; MAKING

APPROPRIATIONS.

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

Section 1. Section 51-1-4 NMSA 1978 (being Laws 2003,

Chapter 47, Section 8, as amended) 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 rules prescribed by the secretary

through employment offices or other agencies as the secretary

approves by general rule.

B. Weekly benefits shall be as follows:

(1) an individual's "weekly benefit amount"

is an amount equal to fifty-three and one-half percent of the

average weekly wage for insured work paid to the individual in

that quarter of the individual's base period in which total

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wages were highest. No benefit as so computed may be less

than ten percent or more than fifty-three 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 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. An individual is not eligible to receive

benefits unless the individual has wages in at least two

quarters of that individual's base period. For the 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) an eligible individual who is unemployed

in any week during which the individual is in a continued

claims status shall be paid, with respect to the week, a

benefit in an amount equal to the individual's weekly benefit

amount, less that part of the wages, if any, or earnings from

self-employment, payable to the individual with respect to

such week that is in excess of one-fifth of the individual's

weekly benefit amount. For purposes of this subsection only,

"wages" includes all remuneration for services actually

performed in a week for which benefits are claimed, vacation

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pay for a 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, an eligible individual who, pursuant to a plan

financed in whole or in part by a base-period employer of the

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 the individual and who

is unemployed with respect to any week ending subsequent to

April 9, 1981 shall be paid with respect to the week, in

accordance with rules prescribed by the secretary,

compensation equal to the individual's weekly benefit amount

reduced, but not below zero, by the prorated amount of the

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 the eligible individual shall be an amount not more than

twenty-six times the individual's reduced weekly benefit

amount. If payments referred to in this section are being

received by an 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;

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(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 the individual, the payment shall be

allocated, in accordance with 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 those weeks and shall reduce the amount of

unemployment compensation for those weeks, but not below zero,

by an amount equal to the prorated amount of the 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. An individual otherwise eligible for benefits

shall be paid for each week of unemployment, in addition to

the amount payable under Subsection B of this section, the sum

of twenty-five dollars ($25.00) for each unemancipated child

under the age of eighteen, up to a maximum of four and subject

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to the maximum stated in Subsection D of this section, of the

individual who is in fact dependent upon and wholly or mainly

supported by the individual, including:

(1) a child in the individual's custody

pending the adjudication of a petition filed by the individual

for the adoption of the child in a court of competent

jurisdiction; or

(2) a child for whom the individual, under a

decree or order from a court of competent jurisdiction, is

required to contribute to the child's support and for whom no

other person is receiving allowances under the Unemployment

Compensation Law if the child is domiciled within the United

States or its territories or possessions, the payment to be

withheld and paid pursuant to Section 51-1-37.1 NMSA 1978.

D. Dependency benefits shall not exceed fifty

percent of the individual's weekly benefit rate. The amount

of dependency benefits determined as of the beginning of an

individual's benefit year shall not be reduced for the

duration of the benefit year, but this provision does not

prevent the transfer of dependents' benefits from one spouse

to another in accordance with this subsection. If both the

husband and wife receive benefits with respect to a week of

unemployment, only one of them is entitled to a dependency

allowance with respect to a child. The division shall

prescribe standards as to who may receive a dependency

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allowance when both the husband and wife are eligible to

receive unemployment compensation benefits. Dependency

benefits shall not be paid unless the individual submits

documentation satisfactory to the division establishing the

existence of the claimed dependent. If the provisions of this

subsection are satisfied, an otherwise eligible individual who

has been appointed guardian of a dependent child by a court of

competent jurisdiction shall be paid dependency benefits.

E. 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 the individual's

weekly benefit amount, plus any dependency benefit amount

pursuant to Subsections C and D of this section, or sixty

percent of the individual's wages for insured work paid during

the individual's base period.

F. A benefit as determined in Subsection B or C 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).

G. The secretary may prescribe 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 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.

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H. 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 redetermination."

Section 2. Section 51-1-11 NMSA 1978 (being Laws 2003,

Chapter 47, Section 11, as amended by Laws 2005, Chapter 3,

Section 4 and further amended by Laws 2005, Chapter 255,

Section 2) 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 the

contributing employer's account with all contributions paid by

that employer under the Unemployment Compensation Law.

Nothing in the Unemployment Compensation Law shall be

construed to grant an employer or individuals in the

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employer's service prior claims or rights to the amounts paid

by the employer into the fund.

B. Benefits paid to an individual shall be charged

against the accounts of the individual's base-period employers

on a pro rata basis according to the proportion of the

individual's total base-period wages received from each

employer, 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 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 the individual's employment;

(2) was discharged from the employment of a

base-period employer who is not on a reimbursable basis for

misconduct connected with the individual's employment;

(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

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from a base-period employer who is not on a reimbursable basis

while attending approved training or school on a full-time

basis 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. The division shall not charge a contributing

base-period employer's account with any portion of benefits

paid to an individual for dependent allowance or because the

individual to whom benefits are paid:

(1) separated from employment due to domestic

abuse, as "domestic abuse" is defined in Section 40-13-2 NMSA

1978;

(2) is enrolled in approved training or is

attending school on a full-time basis; or

(3) voluntarily left work to relocate because

of a spouse, who is in the military service of the United

States or the New Mexico national guard, receiving permanent

change of station orders, activation orders or unit deployment

orders.

E. All contributions to the fund shall be pooled

and available to pay benefits to any individual entitled

thereto, irrespective of the source of the contributions.

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F. For each calendar year, if, as of the

computation date for that year, an employer's account has been

chargeable with benefits throughout the preceding thirty-six

months, the secretary shall classify the employer in

accordance with its actual experience of benefits charged

against its accounts. For such an employer, the contribution

rate shall be determined pursuant to Subsection I of this

section on the basis of the employer's record and the

condition of the fund as of the computation date for the

calendar year. If, as of the computation date for a calendar

year, an employer's account has not been chargeable with

benefits throughout the preceding thirty-six months, the

contribution rate for that employer for the calendar year

shall be two percent, except that:

(1) an 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 rate of contribution less than two percent shall be entitled

to the transfer of the reduced rate to the extent permitted

under Subsection H of this section;

(2) an employer that, at the time of

establishing an account, is in business in another state or

states and that is not currently doing business in New Mexico

may elect, pursuant to Paragraph (3) of this subsection, to

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receive a beginning contribution rate of two percent or a

contribution rate based on the current contribution rate

schedule in Paragraph (4) of Subsection I of this section,

whichever is lower, if:

(a) the employer has been in operation

in the other state or states for at least three years

immediately preceding the date of becoming a liable employer

in New Mexico, throughout which an individual in the

employer's employ could have received benefits if eligible;

and

(b) the employer provides the

authenticated account history as defined by rule of the

secretary from information accumulated from operations in the

other state or all the other states to compute a current New

Mexico rate; and

(3) the election authorized in Paragraph (2)

of this subsection shall be made in writing within thirty days

after receiving notice of New Mexico liability and, if not

made timely, a two percent rate will be assigned; if the

election is made timely, the employer's account will receive

the lesser of the computed rate determined by the condition of

the account for the computation date immediately preceding the

New Mexico liable date, or two percent; rates for subsequent

years will be determined by the condition of the account for

the computation date.

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G. An employer may make voluntary payments in

addition to the contributions required under the Unemployment

Compensation Law, which shall be credited to the employer's

account in accordance with department 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.

H. In the case of a transfer of an employing

enterprise, notwithstanding any other provision of law, the

experience history of the transferred enterprise shall be

transferred from the predecessor employer to the successor

under the following conditions and in accordance with the

applicable rules of the secretary:

(1) as used in this subsection:

(a) "employing enterprise" means 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. An

"employing enterprise" includes the employer's workforce;

(b) "predecessor" means the owner and

operator of an employing enterprise immediately prior to the

transfer of such enterprise;

(c) "successor" means any person that

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acquires an employing enterprise and continues to operate such

business entity;

(d) "experience history" means the

experience rating record and reserve account, including the

actual contributions, benefit charges and payroll experience

of the employing enterprise;

(e) "common ownership" means that two

or more businesses are substantially owned, managed or

controlled by the same person or persons;

(f) "knowingly" means having actual

knowledge of or acting with deliberate ignorance of or

reckless disregard for the prohibition involved; and

(g) "violates or attempts to violate"

includes an intent to evade, a misrepresentation or a willful

nondisclosure;

(2) except as otherwise provided in this

subsection, for the purpose of this subsection, 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

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penalties due from the predecessor employer have been paid;

(b) notice of the transfer has been

given in accordance with the rules of the secretary during the

calendar year of the transaction transferring the employing

enterprise or the date of the actual transfer of control and

operation of the employing enterprise;

(c) the successor shall notify the

division of the acquisition on or before the due date of the

successor'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. A party to a merger, consolidation or other form of

reorganization described in this subparagraph shall not be

relieved of liability for any contributions, interest or

penalties due and owing from the employing enterprise at the

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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 the 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 the

secretary's delegate. A partial experience history transfer

will be made only if the successor:

(a) 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) files an application provided by

the division that contains the endorsement of the predecessor

within thirty days from the delivery or mailing of such

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application by the division to the successor's last known

address; and

(c) 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 I 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;

(4) if, at the time of a transfer of an

employing enterprise in whole or in part, both the predecessor

and the successor are under common ownership, then the

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experience history attributable to the transferred business

shall also be transferred to and combined with the experience

history attributable to the successor employer. The rates of

both employers shall be recalculated and made effective

immediately upon the date of the transfer;

(5) whenever a person, who is not currently

an employer, acquires the trade or business of an employing

enterprise, the experience history of the acquired business

shall not be transferred to the successor if the secretary or

the secretary's designee finds that the successor acquired the

business solely or primarily for the purpose of obtaining a

lower rate of contributions. Instead, the successor shall be

assigned the applicable new employer rate pursuant to this

section. In determining whether the business was acquired

solely or primarily for the purpose of obtaining a lower rate

of contribution, the secretary or the secretary's designee

shall consider:

(a) the cost of acquiring the business;

(b) whether the person continued the

business enterprise of the acquired business;

(c) how long such business enterprise

was continued; and

(d) whether a substantial number of new

employees were hired for performance of duties unrelated to

those that the business activity conducted prior to

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acquisition;

(6) if, following a transfer of experience

history pursuant to this subsection, the department determines

that a substantial purpose of the transfer of the employing

enterprise was to obtain a reduced liability for

contributions, then the experience rating accounts of the

employers involved shall be combined into a single account and

a single rate assigned to the combined account;

(7) the secretary shall adopt such rules as

are necessary to interpret and carry out the provisions of

this subsection, including rules that:

(a) describe how experience history is

to be transferred; and

(b) establish procedures to identify

the type of transfer or acquisition of an employing

enterprise; and

(8) a person who knowingly violates or

attempts to violate a rule adopted pursuant to Paragraph (7)

of this subsection, who transfers or acquires, or attempts to

transfer or acquire, an employing enterprise for the sole or

primary purpose of obtaining a reduced liability for

contributions or who knowingly advises another person to

violate a rule adopted pursuant to Paragraph (7) of this

subsection or to transfer or acquire an employing enterprise

for the sole or primary purpose of obtaining a reduced

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liability for contributions is guilty of a misdemeanor and

shall be punished by a fine of not less than one thousand five

hundred dollars ($1,500) or more than three thousand dollars

($3,000) or, if an individual, by imprisonment for a definite

term not to exceed ninety days or both. In addition, such a

person shall be subject to the following civil penalty imposed

by the secretary:

(a) if the person is an employer, the

person shall be assigned the highest contribution rate

established by the provisions of this section for the calendar

year in which the violation occurs and the three subsequent

calendar years; provided that, if the difference between the

increased penalty rate and the rate otherwise applicable would

be less than two percent of the employer's payroll, the

contribution rate shall be increased by two percent of the

employer's payroll for the calendar year in which the

violation occurs and the three subsequent calendar years; or

(b) if the person is not an employer,

the secretary may impose a civil penalty not to exceed three

thousand dollars ($3,000).

I. For each calendar year, if, as of the

computation date for that year, an employer's account has been

chargeable with benefits throughout the preceding thirty-six

months, the contribution rate for that employer shall be

determined as follows:

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(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 shall be fixed by the excess of the employer's total

contributions over total benefit charges computed as a

percentage of the employer's 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 the employer's reserve as

shown in the reserve column with the corresponding rate in the

rate column of the applicable rate schedule of the table

provided in Paragraph (4) or (5) of this subsection;

(2) for each calendar year after 2010, except

as otherwise provided, each employer's rate shall be the

corresponding rate in:

(a) Schedule 0 of the table provided in

Paragraph (4) of this subsection if the fund equals at least

two and three-tenths percent of the total payrolls;

(b) Schedule 1 of the table provided in

Paragraph (4) of this subsection if the fund equals less than

two and three-tenths percent but not less than one and seven-

tenths percent of the total payrolls;

(c) Schedule 2 of the table provided in

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Paragraph (4) of this subsection if the fund equals less than

one and seven-tenths percent but not less than one and three-

tenths percent of the total payrolls;

(d) Schedule 3 of the table provided in

Paragraph (4) of this subsection if the fund equals less than

one and three-tenths percent but not less than one percent of

the total payrolls;

(e) Schedule 4 of the table provided in

Paragraph (4) of this subsection if the fund equals less than

one percent but not less than seven-tenths percent of the

total payrolls;

(f) Schedule 5 of the table provided in

Paragraph (4) of this subsection if the fund equals less than

seven-tenths percent but not less than three-tenths percent of

the total payrolls; or

(g) Schedule 6 of the table provided in

Paragraph (4) of this subsection if the fund equals less than

three-tenths percent of the total payrolls;

(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

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of an individual for insured work during the individual's base

period on the basis of which the individual's benefit rights

were determined;

(c) "base-period employers" means the

employers of an individual during the individual's 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 Contribution

Reserve

Schedule 0 Schedule 1 Schedule 2 Schedule 3

10.0% and over

0.03%

0.05%

0.1%

0.6%

9.0%-9.9%

0.06%

0.1%

0.2%

0.9%

8.0%-8.9%

0.09%

0.2%

0.4%

1.2%

7.0%-7.9%

0.10%

0.4%

0.6%

1.5%

6.0%-6.9%

0.30%

0.6%

0.8%

1.8%

5.0%-5.9%

0.50%

0.8%

1.1%

2.1%

4.0%-4.9%

0.80%

1.1%

1.4%

2.4%

3.0%-3.9%

1.20%

1.4%

1.7%

2.7%

2.0%-2.9%

1.50%

1.7%

2.0%

3.0%

1.0%-1.9%

1.80%

2.0%

2.4%

3.3%

0.9%-0.0%

2.40%

2.4%

3.3%

3.6%

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(-0.1%)-(-0.5%)

3.30%

3.3%

3.6%

3.9%

(-0.5%)-(-1.0%)

4.20%

4.2%

4.2%

4.2%

(-1.0%)-(-2.0%)

5.00%

5.0%

5.0%

5.0%

Under (-2.0%)

5.40%

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%; and

(5) from July 1, 2007 through December 31,

2010, each employer making contributions pursuant to this

subsection shall make a contribution at the rate specified in

contribution schedule A and a contribution at the rate

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specified in contribution schedule B for the employer's

reserve for each of the following periods. Contributions made

pursuant to contribution schedule A shall be deposited in the

unemployment compensation fund and contributions made pursuant

to contribution schedule B shall be deposited in the state

unemployment trust fund:

(a) for the period July 1, 2007 through

December 31, 2008:

Employer

Contribution

Contribution

Reserve

Schedule A

Schedule B

10.0% and over

0.015%

0.015%

9.0%-9.9%

0.03%

0.03%

8.0%-8.9%

0.045%

0.045%

7.0%-7.9%

0.05%

0.05%

6.0%-6.9%

0.15%

0.15%

5.0%-5.9%

0.25%

0.25%

4.0%-4.9%

0.4%

0.4%

3.0%-3.9%

0.6%

0.6%

2.0%-2.9%

0.75%

0.75%

1.0%-1.9%

0.9%

0.9%

0.9%-0.0%

1.2%

1.2%

(-0.1%)-(-0.5%)

1.65%

1.65%

(-0.5%)-(-1.0%)

2.1%

2.1%

(-1.0%)-(-2.0%)

2.5%

2.5%

Under (-2.0%)

5.4%

0.0%

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(b) for the period January 1, 2009

through December 31, 2009:

Employer

Contribution

Contribution

Reserve

Schedule A

Schedule B

10.0% and over

0.018%

0.012%

9.0%-9.9%

0.036%

0.024%

8.0%-8.9%

0.054%

0.036%

7.0%-7.9%

0.06%

0.04%

6.0%-6.9%

0.18%

0.12%

5.0%-5.9%

0.3%

0.2%

4.0%-4.9%

0.48%

0.32%

3.0%-3.9%

0.72%

0.48%

2.0%-2.9%

0.9%

0.6%

1.0%-1.9%

1.08%

0.72%

0.9%-0.0%

1.44%

0.96%

(-0.1%)-(-0.5%)

1.98%

1.32%

(-0.5%)-(-1.0%)

2.52%

1.68%

(-1.0%)-(-2.0%)

3.0%

2.0%

Under (-2.0%)

5.4%

0.0%

(c) for the period January 1, 2010

through December 31, 2010:

Employer

Contribution

Contribution

Reserve

Schedule A

Schedule B

10.0% and over

0.0195%

0.0105%

9.0%-9.9%

0.039%

0.021%

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8.0%-8.9%

0.0585%

0.0315%

7.0%-7.9%

0.065%

0.035%

6.0%-6.9%

0.195%

0.105%

5.0%-5.9%

0.325%

0.175%

4.0%-4.9%

0.52%

0.28%

3.0%-3.9%

0.78%

0.42%

2.0%-2.9%

0.975%

0.525%

1.0%-1.9%

1.17%

0.63%

0.9%-0.0%

1.56%

0.84%

(-0.1%)-(-0.5%)

2.145%

1.155%

(-0.5%)-(-1.0%)

2.73%

1.47%

(-1.0%)-(-2.0%)

3.25%

1.75%

Under (-2.0%)

5.4%

0.0%.

J. The division shall promptly notify each

employer of the employer's 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 of the employer's

contributions paid on the employer's behalf and credited to

the employer's account for all past years and total benefits

charged to the employer's 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 the employer's last known address or in the

absence of mailing, within thirty days after the delivery of

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such notice, the employer files an application for review and

redetermination, setting forth the employer's reason therefor.

The employer shall be granted an opportunity for a fair

hearing in accordance with rules prescribed by the secretary,

but an employer shall not have standing, in any proceeding

involving the employer's rate of contributions or contribution

liability, to contest the chargeability to the employer's

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 the

employer and only in the event that the employer 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 the

employer's application for redetermination, which shall become

final unless, within fifteen days after the mailing of notice

thereof to the employer's 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 division shall provide each contributing

employer, within ninety days of the end of each calendar

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quarter, a written determination of benefits chargeable to the

employer's 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 the employer's 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 the employer's

reason therefor. The employer shall be granted an opportunity

for a fair hearing in accordance with rules prescribed by the

secretary, but an employer shall not have standing in any

proceeding involving the employer's contribution liability to

contest the chargeability to the employer's 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 the employer

and only in the event that the employer 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 the

employer's application for redetermination, which shall become

final unless, within fifteen days after the mailing of notice

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thereof to the employer's 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.

L. 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.

M. The secretary shall correct any error in the

determination of an employer's rate of contribution during the

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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 J of this section.

N. 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."

Section 3. Section 51-1-19 NMSA 1978 (being Laws 1936

(S.S.), Chapter 1, Section 9, as amended) is amended to read:

"51-1-19. UNEMPLOYMENT COMPENSATION FUND.--

A. There is hereby established as a special fund,

separate and apart from all public money, or funds of this

state, an "unemployment compensation fund", which shall be

administered by the department exclusively for the purposes of

this section. The fund shall consist of:

(1) except for contributions deposited into

the state unemployment trust fund pursuant to contribution

schedule B in Paragraph (5) of Subsection I of Section 51-1-11

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NMSA 1978 and Section 51-1-19.1 NMSA 1978, all contributions

collected and payments in lieu of contributions collected or

due pursuant to the Unemployment Compensation Law;

(2) interest earned upon any money in the

fund;

(3) any property or securities acquired

through the use of money belonging to the fund;

(4) all earnings of such property or

securities;

(5) all money received from the federal

unemployment account in the unemployment trust fund in

accordance with Title 12 of the Social Security Act, as

amended;

(6) all money credited to this state's

account in the unemployment trust fund pursuant to Section 903

of the Social Security Act, as amended;

(7) all money received or due from the

federal government as reimbursements pursuant to Section 204

of the Federal-State Extended Unemployment Compensation Act of

1970; and

(8) all money received for the fund from any

other source. All money in the fund shall be mingled and

undivided.

B. The state treasurer shall be the treasurer and

custodian of the fund and shall administer such fund in

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accordance with the directions of the department and shall

issue checks upon it in accordance with such regulations as

the secretary may prescribe. The state treasurer shall

maintain, within the fund, three separate accounts:

(1) a clearing account;

(2) an unemployment trust fund account; and

(3) a benefit account.

C. All money payable to the fund upon receipt

thereof by the department shall be forwarded to the treasurer,

who shall immediately deposit it in the clearing account.

Refunds payable pursuant to Sections 51-1-36 and 51-1-42 NMSA

1978 shall be paid from the clearing account or the benefit

account upon checks issued by the treasurer under the

direction of the department. After clearance thereof, all

money in the clearing account, except as herein otherwise

provided, shall be immediately deposited with the secretary of

the treasury of the United States to the credit of the account

of this state in the unemployment trust fund, established and

maintained pursuant to Section 904 of the act of congress

known as the Social Security Act, as amended (42 U.S.C.

Section 1104), any provisions of law in this state relating to

the deposits, administration, release or disbursements of

money in the possession or custody of this state to the

contrary notwithstanding. The benefit account shall consist

of all money requisitioned from this state's account in the

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unemployment trust fund. Except as herein otherwise provided,

money in the clearing and benefit accounts may be deposited by

the treasurer, under the direction of the secretary, in any

bank or public depository in which general funds of the state

may be deposited, but no public deposit insurance charge or

premium shall be paid out of the fund. Money in the clearing

and benefit accounts shall not be commingled with other state

funds but shall be maintained in separate accounts on the

books of the depository.

D. All of the money not deposited in the treasury

of the United States shall be subject to the general laws

applicable to the deposit of public money in the state; and

collateral pledged for this purpose shall be kept separate and

distinct from any collateral pledged to secure other funds of

this state.

E. The state treasurer shall be liable on the

state treasurer's official bond for the faithful performance

of duties in connection with the unemployment compensation

fund provided for under this section. The liability on the

official bond of the state treasurer shall be effective

immediately upon the enactment of this provision, and such

liability shall exist in addition to the liability of any

separate bond existent on the effective date of this provision

or that may be given in the future. All sums recovered for

losses sustained by the fund shall be deposited therein.

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F. All money in the clearing account established

under this section is hereby appropriated for the purpose of

making refunds pursuant to Sections 51-1-36 and 51-1-42 NMSA

1978, and all money in the clearing account not needed for the

purpose of making the refunds shall be immediately paid to the

secretary of the treasury of the United States to the credit

of the account of this state in the unemployment trust fund,

and the money in the unemployment trust fund is hereby

appropriated for the purposes of this section.

G. Money shall be requisitioned from this state's

account in the unemployment trust fund solely for the payment

of benefits and for the payment of refunds pursuant to

Sections 51-1-36 and 51-1-42 NMSA 1978 in accordance with

regulations prescribed by the secretary, except that money

credited to this state's account pursuant to Section 903 of

the Social Security Act, as amended, shall be used exclusively

as provided in Subsection H of this section. The secretary

shall, from time to time, requisition from the unemployment

trust fund such amounts not exceeding the amounts standing to

this state's account therein, as the secretary deems necessary

for the payment of such benefits and refunds for a reasonable

future period. Upon receipt thereof, the treasurer shall

deposit such money in the benefit account and shall issue

checks for the payment of benefits solely from such benefit

account. Expenditures of such money in the benefit account

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and refunds from the benefit account or the clearing account

shall not be subject to any provisions of law requiring

specific appropriations or other formal release by state

officers of money in their custody. All money shall be

withdrawn from the fund only upon a warrant issued by the

department or its duly authorized agent upon the treasurer,

and the treasurer upon receipt of such warrants shall issue a

check against the fund in accordance with the warrant of the

secretary. Any balance of money requisitioned from the

unemployment trust fund that remains unclaimed or unpaid in

the benefit account after the expiration of the period for

which such sums were requisitioned shall either be deducted

from estimates for, and may be utilized for, the payment of

benefits and refunds during succeeding periods, or in the

discretion of the secretary, shall be redeposited with the

secretary of the treasury of the United States, to the credit

of this state's account in the unemployment trust fund, as

provided in Subsection C of this section. All money in the

benefit account provided for hereinabove is hereby

appropriated for the payment of benefits and refunds as

provided herein.

H. Money credited to the account of this state in

the unemployment trust fund by the secretary of the treasury

of the United States pursuant to Section 903 of the Social

Security Act may be requisitioned from this state's account or

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used only for:

(1) the payment of benefits pursuant to

Subsection G of this section; and

(2) the payment of expenses incurred for the

administration of the Unemployment Compensation Law and the

federal Wagner-Peyser Act; provided that any money

requisitioned and used for the payment of expenses incurred

for the administration of the Unemployment Compensation Law

and the federal Wagner-Peyser Act must be authorized by the

enactment of a specific appropriation by the legislature that:

(a) specifies the purpose for which

such money is appropriated and the amounts appropriated

therefor;

(b) limits the period within which such

money may be obligated to a period ending not more than two

years after the date of the enactment of the appropriation

law, except for amounts distributed to the state of New Mexico

on March 13, 2002 pursuant to Section 209 of the federal

Temporary Extended Unemployment Compensation Act of 2002;

(c) limits the amount that may be

obligated to an amount that does not exceed the amount by

which the aggregate of the amounts credited to the account of

this state pursuant to Section 903 of the Social Security Act

exceeds the aggregate of the amounts used by the state

pursuant to this subsection and charged against the amounts

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transferred to the account of this state; and

(d) notwithstanding the provisions of

Paragraph (1) of this subsection, money credited with respect

to federal fiscal years 1999, 2000 and 2001 shall be used only

for the administration of the Unemployment Compensation Law.

I. Amounts credited to this state's account in the

unemployment trust fund under Section 903 of the Social

Security Act that are obligated for administration shall be

charged against transferred amounts at the exact time the

obligation is entered into. The appropriation, obligation and

expenditure or other disposition of money appropriated under

Subsection H of this section shall be accounted for in

accordance with standards established by the United States

secretary of labor.

J. Money appropriated under Subsection H of this

section for payment of expenses of administration shall be

requisitioned as needed for payment of the obligations

incurred under such appropriations and, upon requisition,

shall be deposited in the unemployment compensation

administration fund but, until expended, shall remain a part

of the unemployment compensation fund for use only in

accordance with the conditions specified in Subsection H of

this section, notwithstanding any provision of Section 51-1-34

NMSA 1978. Any money so deposited that will not be expended

shall be returned promptly to the account of the state in the

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unemployment trust fund.

K. The provisions of Subsections A through J of

this section to the extent that they relate to the

unemployment trust fund, shall be operative only so long as

such unemployment trust fund continues to exist and so long as

the secretary of the treasury of the United States continues

to maintain for this state a separate book account of all

funds deposited therein by the state for benefit purposes,

together with this state's proportionate share of the earnings

of such unemployment trust fund from which no other state is

permitted to make withdrawals. If and when such unemployment

trust fund ceases to exist, or such separate book account is

no longer maintained, all money, properties or securities

therein belonging to the unemployment compensation fund of

this state shall be transferred to the treasurer of the

unemployment compensation fund, who shall hold, invest,

transfer, sell, deposit and release such money, properties or

securities in a manner approved by the secretary, in

accordance with the provisions of this section; provided that

such money shall be invested in the following readily

marketable classes of securities; bonds or other interest-

bearing obligations of the United States and of the state; and

provided further that such investment shall at all times be so

made that all the assets of the fund shall always be readily

convertible into cash when needed for the payment of benefits.

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The treasurer shall dispose of securities or other properties

belonging to the unemployment compensation fund only under the

direction of the secretary."

Section 4. A new section of the Unemployment

Compensation Law, Section 51-1-19.1 NMSA 1978, is enacted to

read:

"51-1-19.1. STATE UNEMPLOYMENT TRUST FUND.--

A. The "state unemployment trust fund" is created

in the state treasury. The fund shall consist of money

deposited into the fund pursuant to Subsection B of this

section. Money in the fund shall be invested by the state

investment officer as land grant permanent funds are invested

pursuant to Chapter 6, Article 8 NMSA 1978. Income from

investment of the fund shall be credited to the fund. Except

as provided in this section, money in the fund shall not

revert or be transferred to any other fund and shall not be

expended for any purpose.

B. Notwithstanding any requirement of the

Unemployment Compensation Law to deposit all contributions

into the unemployment compensation fund, contributions made

pursuant to contribution schedule B of Paragraph (5) of

Subsection I of Section 51-1-11 NMSA 1978 shall be deposited

in the state unemployment trust fund.

C. Earnings from the investment of the fund are

subject to appropriation by the legislature to the department

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solely for the purpose of administering the unemployment

insurance and employment security programs.

D. Upon a determination by the secretary that the

average high cost multiple of the unemployment compensation

fund is less than two-tenths percent, the state treasurer

shall transfer the amount necessary, as determined by the

secretary, from the state unemployment trust fund to the

unemployment compensation fund to maintain the average high

cost multiple of the unemployment compensation fund at a value

greater than two-tenths percent.

E. As used in this section:

(1) "average high cost multiple" means the

calendar year reserve ratio divided by the average high cost

rate;

(2) "average high cost rate" means the

average of the three highest annual benefit cost rates in the

last twenty years or in the last three recessionary periods,

whichever is longer;

(3) "benefit cost rate" means the benefits

paid, including the state's share of extended benefits but

excluding reimbursable benefits, as a percent of total

payrolls; and

(4) "calendar year reserve ratio" means the

current balance of the unemployment compensation fund as a

percentage of total payrolls."

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Section 5. Section 51-1-42 NMSA 1978 (being Laws 2003,

Chapter 47, Section 12, as amended) is amended to read:

"51-1-42. DEFINITIONS.--As used in the Unemployment

Compensation Law:

A. "base period" means the first four of the last

five completed calendar quarters immediately preceding the

first day of an individual's benefit year, except that "base

period" means for benefit years beginning on or after January

1, 2005 for an individual who does not have sufficient wages

in the base period as defined to qualify for benefits pursuant

to Section 51-1-5 NMSA 1978, the individual's base period

shall be the last four completed calendar quarters immediately

preceding the first day of the individual's benefit year if

that period qualifies the individual for benefits pursuant to

Section 51-1-5 NMSA 1978; provided that:

(1) wages that fall within the base period of

claims established pursuant to this subsection are not

available for reuse in qualifying for a subsequent benefit

year; and

(2) in the case of a combined-wage claim

pursuant to the arrangement approved by the federal secretary

of labor, the base period is that base period applicable under

the unemployment compensation law of the paying state;

B. "benefits" means the cash unemployment

compensation payments payable to an eligible individual

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pursuant to Section 51-1-4 NMSA 1978 with respect to the

individual's weeks of unemployment;

C. "contributions" means the money payments

required by Section 51-1-9 NMSA 1978 to be made into the fund

by an employer on account of having individuals performing

services for the employer;

D. "employing unit" means any individual or type

of organization, including any partnership, association,

cooperative, trust, estate, joint-stock company, agricultural

enterprise, insurance company or corporation, whether domestic

or foreign, or the receiver, trustee in bankruptcy, trustee or

successor thereof, household, fraternity or club, the legal

representative of a deceased person or any state or local

government entity to the extent required by law to be covered

as an employer, which has in its employ one or more

individuals performing services for it within this state. An

individual performing services for an employing unit that

maintains two or more separate establishments within this

state shall be deemed to be employed by a single employing

unit for all the purposes of the Unemployment Compensation

Law. An individual performing services for a contractor,

subcontractor or agent that is performing work or services for

an employing unit, as described in this subsection, which is

within the scope of the employing unit's usual trade,

occupation, profession or business, shall be deemed to be in

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the employ of the employing unit for all purposes of the

Unemployment Compensation Law unless the contractor,

subcontractor or agent is itself an employer within the

provisions of Subsection E of this section;

E. "employer" includes:

(1) an employing unit that:

(a) unless otherwise provided in this

section, paid for service in employment as defined in

Subsection F of this section wages of four hundred fifty

dollars ($450) or more in any calendar quarter in either the

current or preceding calendar year or had in employment, as

defined in Subsection F of this section, for some portion of a

day in each of twenty different calendar weeks during either

the current or the preceding calendar year, and irrespective

of whether the same individual was in employment in each such

day, at least one individual;

(b) for the purposes of Subparagraph

(a) of this paragraph, if any week includes both December 31

and January 1, the days of that week up to January 1 shall be

deemed one calendar week and the days beginning January 1,

another such week; and

(c) for purposes of defining an

"employer" under Subparagraph (a) of this paragraph, the wages

or remuneration paid to individuals performing services in

employment in agricultural labor or domestic services as

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provided in Paragraphs (6) and (7) of Subsection F of this

section shall not be taken into account; except that any

employing unit determined to be an employer of agricultural

labor under Paragraph (6) of Subsection F of this section

shall be an employer under Subparagraph (a) of this paragraph

so long as the employing unit is paying wages or remuneration

for services other than agricultural services;

(2) any individual or type of organization

that acquired the trade or business or substantially all of

the assets thereof, of an employing unit that at the time of

the acquisition was an employer subject to the Unemployment

Compensation Law; provided that where such an acquisition

takes place, the secretary may postpone activating the

separate account pursuant to Subsection A of Section 51-1-11

NMSA 1978 until such time as the successor employer has

employment as defined in Subsection F of this section;

(3) an employing unit that acquired all or

part of the organization, trade, business or assets of another

employing unit and that, if treated as a single unit with the

other employing unit or part thereof, would be an employer

under Paragraph (1) of this subsection;

(4) an employing unit not an employer by

reason of any other paragraph of this subsection:

(a) for which, within either the

current or preceding calendar year, service is or was

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performed with respect to which such employing unit is liable

for any federal tax against which credit may be taken for

contributions required to be paid into a state unemployment

fund; or

(b) that, as a condition for approval

of the Unemployment Compensation Law for full tax credit

against the tax imposed by the Federal Unemployment Tax Act,

is required, pursuant to that act, to be an "employer" under

the Unemployment Compensation Law;

(5) an employing unit that, having become an

employer under Paragraph (1), (2), (3) or (4) of this

subsection, has not, under Section 51-1-18 NMSA 1978, ceased

to be an employer subject to the Unemployment Compensation

Law;

(6) for the effective period of its election

pursuant to Section 51-1-18 NMSA 1978, any other employing

unit that has elected to become fully subject to the

Unemployment Compensation Law;

(7) an employing unit for which any services

performed in its employ are deemed to be performed in this

state pursuant to an election under an arrangement entered

into in accordance with Subsection A of Section 51-1-50 NMSA

1978; and

(8) an Indian tribe as defined in 26 USCA

Section 3306(u) for which service in employment is performed;

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F. "employment":

(1) means any service, including service in

interstate commerce, performed for wages or under any contract

of hire, written or oral, express or implied;

(2) means an individual's entire service,

performed within or both within and without this state if:

(a) the service is primarily localized

in this state with services performed outside the state being

only incidental thereto; or

(b) the service is not localized in any

state but some of the service is performed in this state and:

1) the base of operations or, if there is no base of

operations, the place from which such service is directed or

controlled, is in this state; or 2) the base of operations or

place from which such service is directed or controlled is not

in any state in which some part of the service is performed

but the individual's residence is in this state;

(3) means services performed within this

state but not covered under Paragraph (2) of this subsection

if contributions or payments in lieu of contributions are not

required and paid with respect to such services under an

unemployment compensation law of any other state, the federal

government or Canada;

(4) means services covered by an election

pursuant to Section 51-1-18 NMSA 1978 and services covered by

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an election duly approved by the secretary in accordance with

an arrangement pursuant to Paragraph (1) of Subsection A of

Section 51-1-50 NMSA 1978 shall be deemed to be employment

during the effective period of the election;

(5) means services performed by an individual

for an employer for wages or other remuneration unless and

until it is established by a preponderance of evidence that:

(a) the individual has been and will

continue to be free from control or direction over the

performance of the services both under the individual's

contract of service and in fact;

(b) the service is either outside the

usual course of business for which the service is performed or

that such service is performed outside of all the places of

business of the enterprise for which such service is

performed; and

(c) the individual is customarily

engaged in an independently established trade, occupation,

profession or business of the same nature as that involved in

the contract of service;

(6) means service performed after December

31, 1977 by an individual in agricultural labor as defined in

Subsection Q of this section if:

(a) the service is performed for an

employing unit that: 1) paid remuneration in cash of twenty

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thousand dollars ($20,000) or more to individuals in that

employment during any calendar quarter in either the current

or the preceding calendar year; or 2) employed in agricultural

labor ten or more individuals for some portion of a day in

each of twenty different calendar weeks in either the current

or preceding calendar year, whether or not the weeks were

consecutive, and regardless of whether the individuals were

employed at the same time;

(b) the service is not performed before

January 1, 1980 by an individual who is an alien admitted to

the United States to perform service in agricultural labor

pursuant to Sections 214(c) and 101(15)(H) of the federal

Immigration and Nationality Act; and

(c) for purposes of this paragraph, an

individual who is a member of a crew furnished by a crew

leader to perform service in agricultural labor for a farm

operator or other person shall be treated as an employee of

the crew leader: 1) if the crew leader meets the requirements

of a crew leader as defined in Subsection L of this section;

or 2) substantially all the members of the crew operate or

maintain mechanized agricultural equipment that is provided by

the crew leader; and 3) the individuals performing the

services are not, by written agreement or in fact, within the

meaning of Paragraph (5) of this subsection, performing

services in employment for the farm operator or other person;

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(7) means service performed after December

31, 1977 by an individual in domestic service in a private

home, local college club or local chapter of a college

fraternity or sorority for a person or organization that paid

cash remuneration of one thousand dollars ($1,000) in any

calendar quarter in the current or preceding calendar year to

individuals performing such services;

(8) means service performed after December

31, 1971 by an individual in the employ of a religious,

charitable, educational or other organization but only if the

following conditions are met:

(a) the service is excluded from

"employment" as defined in the Federal Unemployment Tax Act

solely by reason of Section 3306(c)(8) of that act; and

(b) the organization meets the

requirements of "employer" as provided in Subparagraph (a) of

Paragraph (1) of Subsection E of this section;

(9) means service of an individual who is a

citizen of the United States, performed outside the United

States, except in Canada, after December 31, 1971 in the

employ of an American employer, other than service that is

deemed "employment" under the provisions of Paragraph (2) of

this subsection or the parallel provisions of another state's

law, if:

(a) the employer's principal place of

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business in the United States is located in this state;

(b) the employer has no place of

business in the United States, but: 1) the employer is an

individual who is a resident of this state; 2) the employer is

a corporation organized under the laws of this state; or 3)

the employer is a partnership or a trust and the number of the

partners or trustees who are residents of this state is

greater than the number who are residents of any one other

state; or

(c) none of the criteria of

Subparagraphs (a) and (b) of this paragraph are met, but the

employer has elected coverage in this state or, the employer

having failed to elect coverage in any state, the individual

has filed a claim for benefits, based on such service, under

the law of this state.

"American employer" for the purposes of this paragraph

means a person who is: 1) an individual who is a resident of

the United States; 2) a partnership if two-thirds or more of

the partners are residents of the United States; 3) a trust if

all of the trustees are residents of the United States; or 4)

a corporation organized under the laws of the United States or

of any state. For the purposes of this paragraph, "United

States" includes the United States, the District of Columbia,

the commonwealth of Puerto Rico and the Virgin Islands;

(10) means, notwithstanding any other

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provisions of this subsection, service with respect to which a

tax is required to be paid under any federal law imposing a

tax against which credit may be taken for contributions

required to be paid into a state unemployment fund or which as

a condition for full tax credit against the tax imposed by the

Federal Unemployment Tax Act is required to be covered under

the Unemployment Compensation Law;

(11) means service performed in the employ of

an Indian tribe if:

(a) the service is excluded from

"employment" as defined in 26 USCA Section 3306(c) solely by

reason of 26 USCA Section 3306(c)(7); and

(b) the service is not otherwise

excluded from employment pursuant to the Unemployment

Compensation Law;

(12) does not include:

(a) service performed in the employ of:

1) a church or convention or association of churches; or 2) an

organization that is operated primarily for religious purposes

and that is operated, supervised, controlled or principally

supported by a church or convention or association of

churches;

(b) service performed by a duly

ordained, commissioned or licensed minister of a church in the

exercise of such ministry or by a member of a religious order

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in the exercise of duties required by such order;

(c) service performed by an individual

in the employ of the individual's son, daughter or spouse, and

service performed by a child under the age of majority in the

employ of the child's father or mother;

(d) service performed in the employ of

the United States government or an instrumentality of the

United States immune under the constitution of the United

States from the contributions imposed by the Unemployment

Compensation Law except that to the extent that the congress

of the United States shall permit states to require any

instrumentalities of the United States to make payments into

an unemployment fund under a state unemployment compensation

act, all of the provisions of the Unemployment Compensation

Law shall be applicable to such instrumentalities, and to

service performed for such instrumentalities in the same

manner, to the same extent and on the same terms as to all

other employers, employing units, individuals and services;

provided that if this state shall not be certified for any

year by the secretary of labor of the United States under

Section 3304 of the federal Internal Revenue Code of 1986,

26 U.S.C. Section 3304, the payments required of such

instrumentalities with respect to such year shall be refunded

by the department from the fund in the same manner and within

the same period as is provided in Subsection D of Section

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51-1-36 NMSA 1978 with respect to contributions erroneously

collected;

(e) service performed in a facility

conducted for the purpose of carrying out a program of

rehabilitation for individuals whose earning capacity is

impaired by age or physical or mental deficiency or injury or

providing remunerative work for individuals who because of

their impaired physical or mental capacity cannot be readily

absorbed in the competitive labor market, by an individual

receiving that rehabilitation or remunerative work;

(f) service with respect to which

unemployment compensation is payable under an unemployment

compensation system established by an act of congress;

(g) service performed in the employ of

a foreign government, including service as a consular or other

officer or employee or a nondiplomatic representative;

(h) service performed by an individual

for a person as an insurance agent or as an insurance

solicitor, if all such service performed by the individual for

the person is performed for remuneration solely by way of

commission;

(i) service performed by an individual

under the age of eighteen in the delivery or distribution of

newspapers or shopping news, not including delivery or

distribution to any point for subsequent delivery or

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distribution;

(j) service covered by an election duly

approved by the agency charged with the administration of any

other state or federal unemployment compensation law, in

accordance with an arrangement pursuant to Paragraph (1) of

Subsection A of Section 51-1-50 NMSA 1978 during the effective

period of the election;

(k) service performed, as part of an

unemployment work-relief or work-training program assisted or

financed in whole or part by any federal agency or an agency

of a state or political subdivision thereof, by an individual

receiving the work relief or work training;

(l) service performed by an individual

who is enrolled at a nonprofit or public educational

institution that normally maintains a regular faculty and

curriculum and normally has a regularly organized body of

students in attendance at the place where its educational

activities are carried on as a student in a full-time program,

taken for credit at the institution that combines academic

instruction with work experience, if the service is an

integral part of such program and the institution has so

certified to the employer, except that this subparagraph shall

not apply to service performed in a program established for or

on behalf of an employer or group of employers;

(m) service performed in the employ of

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a hospital, if the service is performed by a patient of the

hospital, or services performed by an inmate of a custodial or

penal institution for any employer;

(n) service performed by real estate

salespersons for others when the services are performed for

remuneration solely by way of commission;

(o) service performed in the employ of

a school, college or university if the service is performed by

a student who is enrolled and is regularly attending classes

at the school, college or university;

(p) service performed by an individual

for a fixed or contract fee officiating at a sporting event

that is conducted by or under the auspices of a nonprofit or

governmental entity if that person is not otherwise an

employee of the entity conducting the sporting event;

(q) service performed for a private,

for-profit person or entity by an individual as a product

demonstrator or product merchandiser if the service is

performed pursuant to a written contract between that

individual and a person or entity whose principal business is

obtaining the services of product demonstrators and product

merchandisers for third parties, for demonstration and

merchandising purposes and the individual: 1) is compensated

for each job or the compensation is based on factors related

to the work performed; 2) provides the equipment used to

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perform the service, unless special equipment is required and

provided by the manufacturer through an agency; 3) is

responsible for completion of a specific job and for any

failure to complete the job; 4) pays all expenses, and the

opportunity for profit or loss rests solely with the

individual; and 5) is responsible for operating costs, fuel,

repairs and motor vehicle insurance. For the purpose of this

subparagraph, "product demonstrator" means an individual who,

on a temporary, part-time basis, demonstrates or gives away

samples of a food or other product as part of an advertising

or sales promotion for the product and who is not otherwise

employed directly by the manufacturer, distributor or

retailer, and "product merchandiser" means an individual who,

on a temporary, part-time basis builds or resets a product

display and who is not otherwise directly employed by the

manufacturer, distributor or retailer; or

(r) service performed for a private,

for-profit person or entity by an individual as a landman if

substantially all remuneration paid in cash or otherwise for

the performance of the services is directly related to the

completion by the individual of the specific tasks contracted

for rather than to the number of hours worked by the

individual. For the purposes of this subparagraph, "landman"

means a land professional who has been engaged primarily in:

1) negotiating for the acquisition or divestiture of mineral

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rights; 2) negotiating business agreements that provide for

the exploration for or development of minerals; 3) determining

ownership of minerals through the research of public and

private records; and 4) reviewing the status of title, curing

title defects and otherwise reducing title risk associated

with ownership of minerals; managing rights or obligations

derived from ownership of interests and minerals; or utilizing

or pooling of interest in minerals; and

(13) for the purposes of this subsection, if

the services performed during one-half or more of any pay

period by an individual for the person employing the

individual constitute employment, all the services of the

individual for the period shall be deemed to be employment,

but, if the services performed during more than one-half of

any such pay period by an individual for the person employing

the individual do not constitute employment, then none of the

services of the individual for the period shall be deemed to

be employment. As used in this paragraph, the term "pay

period" means a period, of not more than thirty-one

consecutive days, for which a payment of remuneration is

ordinarily made to the individual by the person employing the

individual. This paragraph shall not be applicable with

respect to services performed in a pay period by an individual

for the person employing the individual where any of such

service is excepted by Subparagraph (f) of Paragraph (12) of

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this subsection;

G. "employment office" means a free public

employment office, or branch thereof, operated by this state

or maintained as a part of a state-controlled system of public

employment offices;

H. "fund" means the unemployment compensation fund

established by the Unemployment Compensation Law to which all

contributions and payments in lieu of contributions required

under the Unemployment Compensation Law and from which all

benefits provided under the Unemployment Compensation Law

shall be paid; provided that, for the purposes of paying

contributions, "fund" may also include the state unemployment

trust fund and contributions paid to that fund pursuant to

contribution schedule B in Paragraph (5) of Subsection I of

Section 51-1-11 NMSA 1978 and Section 51-1-19.1 NMSA 1978;

I. "unemployment" means, with respect to an

individual, any week during which the individual performs no

services and with respect to which no wages are payable to the

individual and during which the individual is not engaged in

self-employment or receives an award of back pay for loss of

employment. The secretary shall prescribe by rule what

constitutes part-time and intermittent employment, partial

employment and the conditions under which individuals engaged

in such employment are eligible for partial unemployment

benefits, but no individual who is otherwise eligible shall be

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deemed ineligible for benefits solely for the reason that the

individual seeks, applies for or accepts only part-time work,

instead of full-time work, if the part-time work is for at

least twenty hours per week;

J. "state", when used in reference to any state

other than New Mexico, includes, in addition to the states of

the United States, the District of Columbia, the commonwealth

of Puerto Rico and the Virgin Islands;

K. "unemployment compensation administration fund"

means the fund established by Subsection A of Section 51-1-34

NMSA 1978 from which administrative expenses under the

Unemployment Compensation Law shall be paid. "Employment

security department fund" means the fund established by

Subsection B of Section 51-1-34 NMSA 1978 from which certain

administrative expenses under the Unemployment Compensation

Law shall be paid;

L. "crew leader" means a person who:

(1) holds a valid certificate of registration

as a crew leader or farm labor contractor under the federal

Migrant and Seasonal Agricultural Worker Protection Act;

(2) furnishes individuals to perform services

in agricultural labor for any other person;

(3) pays, either on the crew leader's own

behalf or on behalf of such other person, the individuals so

furnished by the crew leader for service in agricultural

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labor; and

(4) has not entered into a written agreement

with the other person for whom the crew leader furnishes

individuals in agricultural labor that the individuals will be

the employees of the other person;

M. "week" means such period of seven consecutive

days, as the secretary may by rule prescribe. The secretary

may by rule prescribe that a week shall be deemed to be "in",

"within" or "during" the benefit year that includes the

greater part of such week;

N. "calendar quarter" means the period of three

consecutive calendar months ending on March 31, June 30,

September 30 or December 31;

O. "insured work" means services performed for

employers who are covered under the Unemployment Compensation

Law;

P. "benefit year" with respect to an individual

means the one-year period beginning with the first day of the

first week of unemployment with respect to which the

individual first files a claim for benefits in accordance with

Subsection A of Section 51-1-8 NMSA 1978 and thereafter the

one-year period beginning with the first day of the first week

of unemployment with respect to which the individual next

files such a claim for benefits after the termination of the

individual's last preceding benefit year; provided that at the

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time of filing such a claim the individual has been paid the

wage required under Paragraph (5) of Subsection A of Section

51-1-5 NMSA 1978;

Q. "agricultural labor" includes all services

performed:

(1) on a farm, in the employ of a person, in

connection with cultivating the soil or in connection with

raising or harvesting an agricultural or horticultural

commodity, including the raising, shearing, feeding, caring

for, training and management of livestock, bees, poultry and

fur-bearing animals and wildlife;

(2) in the employ of the owner or tenant or

other operator of a farm, in connection with the operation,

management, conservation or maintenance of the farm and its

tools and equipment, if the major part of the service is

performed on a farm;

(3) in connection with the operation or

maintenance of ditches, canals, reservoirs or waterways used

exclusively for supplying and storing water for farming

purposes when such ditches, canals, reservoirs or waterways

are owned and operated by the farmers using the water stored

or carried therein; and

(4) in handling, planting, drying, packing,

packaging, processing, freezing, grading, storing or delivery

to storage or to market or to a carrier for transportation to

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market any agricultural or horticultural commodity but only if

the service is performed as an incident to ordinary farming

operations. The provisions of this paragraph shall not be

deemed to be applicable with respect to service performed in

connection with commercial canning or commercial freezing or

in connection with any agricultural or horticultural commodity

after its delivery to a terminal market for distribution for

consumption.

As used in this subsection, the term "farm" includes

stock, dairy, poultry, fruit, fur-bearing animal and truck

farms, plantations, ranches, nurseries, greenhouses, ranges

and orchards;

R. "payments in lieu of contributions" means the

money payments made into the fund by an employer pursuant to

the provisions of Subsection B of Section 51-1-13 NMSA 1978 or

Subsection E of Section 51-1-59 NMSA 1978;

S. "department" means the labor department; and

T. "wages" means all remuneration for services,

including commissions and bonuses and the cash value of all

remuneration in any medium other than cash. The reasonable

cash value of remuneration in any medium other than cash shall

be established and determined in accordance with rules

prescribed by the secretary; provided that the term "wages"

shall not include:

(1) subsequent to December 31, 1977, that

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part of the remuneration in excess of the base wage as

determined by the secretary for each calendar year. The base

wage upon which contribution shall be paid during any calendar

year shall be sixty percent of the state's average annual

earnings computed by the division by dividing total wages

reported to the division by contributing employers for the

second preceding calendar year before the calendar year the

computed base wage becomes effective by the average annual

employment reported by contributing employers for the same

period rounded to the next higher multiple of one hundred

dollars ($100); provided that the base wage so computed for

any calendar year shall not be less than seven thousand

dollars ($7,000). Wages paid by an employer to an individual

in the employer's employ during any calendar year in excess of

the base wage in effect for that calendar year shall be

reported to the department but shall be exempt from the

payment of contributions unless such wages paid in excess of

the base wage become subject to tax under a federal law

imposing a tax against which credit may be taken for

contributions required to be paid into a state unemployment

fund;

(2) the amount of any payment with respect to

services performed after June 30, 1941 to or on behalf of an

individual in the employ of an employing unit under a plan or

system established by the employing unit that makes provision

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for individuals in its employ generally or for a class or

classes of individuals, including any amount paid by an

employing unit for insurance or annuities, or into a fund, to

provide for any payment, on account of:

(a) retirement if the payments are made

by an employer to or on behalf of an employee under a

simplified employee pension plan that provides for payments by

an employer in addition to the salary or other remuneration

normally payable to the employee or class of employees and

does not include any payments that represent deferred

compensation or other reduction of an employee's normal

taxable wages or remuneration or any payments made to a third

party on behalf of an employee as part of an agreement of

deferred remuneration;

(b) sickness or accident disability if

the payments are received under a workers' compensation or

occupational disease disablement law;

(c) medical and hospitalization

expenses in connection with sickness or accident disability;

or

(d) death; provided the individual in

its employ has not the option to receive, instead of provision

for the death benefit, any part of such payment, or, if such

death benefit is insured, any part of the premiums or

contributions to premiums paid by the individual's employing

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unit and has not the right under the provisions of the plan or

system or policy of insurance providing for the death benefit

to assign the benefit, or to receive a cash consideration in

lieu of the benefit either upon the individual's withdrawal

from the plan or system providing for the benefit or upon

termination of the plan or system or policy of insurance or of

the individual's service with the employing unit;

(3) remuneration for agricultural labor paid

in any medium other than cash;

(4) a payment made to, or on behalf of, an

employee or an employee's beneficiary under a cafeteria plan

within the meaning of Section 125 of the federal Internal

Revenue Code of 1986;

(5) a payment made, or benefit furnished to

or for the benefit of an employee if at the time of the

payment or such furnishing it is reasonable to believe that

the employee will be able to exclude the payment or benefit

from income under Section 129 of the federal Internal Revenue

Code of 1986;

(6) a payment made by an employer to a

survivor or the estate of a former employee after the calendar

year in which the employee died;

(7) a payment made to, or on behalf of, an

employee or the employee's beneficiary under an arrangement to

which Section 408(p) of the federal Internal Revenue Code of

1986 applies, other than any elective contributions under

Paragraph (2)(A)(i) of that section;

(8) a payment made to or for the benefit of

an employee if at the time of the payment it is reasonable to

believe that the employee will be able to exclude the payment

from income under Section 106 of the federal Internal Revenue

Code of 1986; or

(9) the value of any meals or lodging

furnished by or on behalf of the employer if at the time the

benefit is provided it is reasonable to believe that the

employee will be able to exclude such items from income under

Section 119 of the federal Internal Revenue Code of 1986."

Section 6. REPEAL.--Laws 2005, Chapter 3, Sections 6

through 11 and 13 are repealed.

Section 7. EFFECTIVE DATE.--The effective date of the

provisions of this act is July 1, 2007.

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