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AN ACT

RELATING TO GOVERNMENT ORGANIZATION; CREATING THE WORKFORCE

SOLUTIONS DEPARTMENT; PROVIDING POWERS AND DUTIES; PROVIDING

FOR TRANSFERS; AMENDING, REPEALING AND ENACTING SECTIONS OF

THE NMSA 1978.

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

Section 1. SHORT TITLE.--Sections 1 through 14 of this

act may be cited as the "Workforce Solutions Department Act".

Section 2. PURPOSE.--The purpose of the Workforce

Solutions Department Act is to establish a single, unified

department to administer all laws and exercise all functions

formerly administered and exercised by the labor department

and the office of workforce development.

Section 3. DEFINITIONS.--As used in the Workforce

Solutions Department Act:

A. "department" means the workforce solutions

department; and

B. "secretary" means the secretary of workforce

solutions.

Section 4. WORKFORCE SOLUTIONS DEPARTMENT CREATED.--The

"workforce solutions department" is created in the executive

branch pursuant to the Executive Reorganization Act. The

department is a cabinet department that includes:

A. the office of the secretary;

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B. the administrative services division;

C. the business services division;

D. the labor relations division;

E. the workforce technology division; and

F. the workforce transition services division.

Section 5. SECRETARY OF WORKFORCE SOLUTIONS--

APPOINTMENT.--

A. The chief executive and administrative officer

of the department is the "secretary of workforce solutions".

The secretary shall be appointed by the governor with the

consent of the senate. The secretary shall hold office at the

pleasure of the governor and shall serve in the executive

cabinet.

B. A secretary who has been appointed but not yet

confirmed shall serve and have all the duties,

responsibilities and authority assigned by law to that office

during the period of time prior to the final action by the

senate to confirm or reject the appointment.

Section 6. SECRETARY--GENERAL POWERS AND DUTIES.--

A. The secretary is responsible to the governor

for the operation of the department. It is the secretary's

duty to manage all operations of the department and to

administer and enforce the laws with which the secretary or

the department is charged.

B. To perform the secretary's duties, the

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secretary has every power expressly enumerated in the laws

whether granted to the secretary or the department or any

division of the department, except where authority conferred

upon the human rights commission is explicitly granted by

Section 28-1-4 NMSA 1978 and except where authority conferred

upon any division therein is explicitly exempted from the

secretary's authority by statute. In accordance with these

provisions, the secretary shall:

(1) except as otherwise provided in the

Workforce Solutions Department Act, exercise general

supervisory and appointing authority over all department

employees, subject to any applicable personnel laws and

regulations;

(2) delegate authority to subordinates as

the secretary deems necessary and appropriate, clearly

delineating such delegated authority and the limitations

thereto;

(3) organize the department into those

organizational units the secretary deems will enable it to

function most efficiently, subject to any provisions of law

requiring or establishing specific organizational units;

(4) within the limitations of available

appropriations and applicable laws, employ and fix the

compensation of those persons necessary to discharge the

secretary's duties;

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(5) take administrative action by issuing

orders and instructions, not inconsistent with the law, to

ensure implementation of and compliance with the provisions of

law with the administration or execution of which the

secretary is responsible, and to enforce those orders and

instructions by appropriate administrative action or actions

in the court;

(6) conduct research and studies that will

improve the operation of the department;

(7) provide courses of instruction and

practical training for employees of the department and other

persons involved in the administration of programs with the

objective of improving the operations and efficiency of

administration;

(8) prepare an annual budget of the

department;

(9) provide cooperation, at the request of

heads of administratively attached agencies, in order to:

(a) minimize or eliminate duplication

of services and jurisdictional conflicts;

(b) coordinate activities and resolve

problems of mutual concern; and

(c) resolve by agreement the manner and

extent to which the department shall provide budgeting, record

keeping and related clerical assistance to administratively

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attached agencies, if any; and

(10) within budgetary limits, appoint such

staff as required to carry out the duties of the secretary or

the department.

C. The secretary may apply for and receive, with

the governor's approval, in the name of the department, any

public or private funds, including United States government

funds, available to the department to carry out its programs,

duties or services.

D. Where functions of departments overlap or a

function assigned to one department could better be performed

by another department, the secretary may recommend appropriate

legislation to the next session of the legislature for its

approval.

E. The secretary may make and adopt such

reasonable and procedural rules as may be necessary to carry

out the duties of the department and its divisions. No rule

promulgated by the director of any division in carrying out

the functions and duties of the division shall be effective

until approved by the secretary unless otherwise provided by

statute. Unless otherwise provided by statute, no rule

affecting any person or agency outside the department shall be

adopted, amended or repealed without a public hearing on the

proposed action before the secretary or a hearing officer

designated by the secretary. The public hearing shall be held

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in Santa Fe unless otherwise permitted by statute. Notice of

the subject matter of the rule, the action proposed to be

taken, the time and place of the hearing, the manner in which

interested persons may present their views and the method by

which copies of the proposed rule, proposed amendment or

repeal of an existing rule may be obtained shall be published

once at least thirty days prior to the hearing date in a

newspaper of general circulation in the state and mailed at

least thirty days prior to the hearing date to all persons who

have made a written request for advance notice of hearing.

All rules shall be filed in accordance with the State Rules

Act.

Section 7. ADMINISTRATIVELY ATTACHED AGENCIES.--The

following are administratively attached to the department:

A. the human rights commission;

B. the labor and industrial commission; and

C. the state workforce development board.

Section 8. DIVISION DIRECTORS.--The secretary shall

appoint, with the approval of the governor, directors of such

divisions as are established within the department. The

positions so appointed are exempt from the Personnel Act.

Section 9. BUREAU--CHIEFS.--The secretary shall

establish within each division such bureaus as the secretary

deems necessary to carry out the provisions of the Workforce

Solutions Department Act. The secretary shall employ a chief

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to be administrative head of each bureau.

Section 10. PERSONNEL ACT COVERAGE.--All employees and

positions in the department, except for the positions of

secretary and division directors and other positions expressly

permitted to be exempt by the Personnel Act, shall be covered

by and shall be subject to the provisions of the Personnel

Act. The secretary is the appointing authority.

Section 11. COOPERATION WITH FEDERAL GOVERNMENT--

AUTHORITY OF SECRETARY--SINGLE STATE AGENCY STATUS.--

A. The department is authorized to cooperate with

the federal government in the administration of employment,

training and public assistance programs under the jurisdiction

of the department in which financial or other participation by

the federal government is authorized or mandated under federal

laws, regulations, rules or orders. The secretary may enter

into agreements with agencies of the federal government to

implement employment, training and public assistance programs

subject to availability of appropriated state funds and any

provisions of state laws applicable to such agreements or

participation by the state.

B. The governor or the secretary may designate the

department or any organizational unit of the department as the

single state agency for the administration of any employment,

training or public assistance program, either by the

governor's or the secretary's own discretion or when such

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designation is a condition of federal financial or other

participation in the program under applicable federal law,

regulation, rule or order. No designation of a single state

agency under the authority granted in this section shall be

made in contravention of state law.

Section 12. ADVISORY COMMITTEES.--The secretary, with

the consent of the governor, may create advisory committees in

accordance with the provisions of Section 9-1-9 NMSA 1978.

The secretary shall appoint the members of advisory committees

with the consent of the governor. If the existence of an

advisory committee, its representational membership

requirements or other matters are required or specified under

any federal law, regulation, rule or order as a condition for

receiving federal funds for any program administered by the

department, the secretary and the governor shall comply with

such requirements in creating the advisory committee.

Section 13. ORGANIZATIONAL UNITS OF DEPARTMENT--POWERS

AND DUTIES SPECIFIED BY LAW--ACCESS TO INFORMATION.--Those

organizational units of the department and the officers of

those units specified by law shall have all the powers and

duties enumerated in the specific laws assigned to their

organizational units for administration. However, the

carrying out of those powers and duties shall be subject to

the direction and supervision of the secretary, and the

secretary shall retain the final decision-making authority and

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responsibility in accordance with the provisions of Subsection

B of Section 6 of the Workforce Solutions Department Act. The

department shall have access to all records, data and

information of other departments, agencies and institutions,

including its own organizational units not specifically held

confidential by law.

Section 14. DISCLOSURE OF INFORMATION.--To the extent

permitted by federal law, upon the written request of a

corporation organized pursuant to the Educational Assistance

Act, the department shall furnish the last known address and

the date of that address of every person certified to the

department as being an absent obligor of an educational debt

that is due and owed to the corporation or that the

corporation has lawfully contracted to collect. The

corporation and its officers and employees shall use such

information only for the purpose of enforcing the educational

debt obligation of such absent obligors and shall not disclose

that information or use it for any other purpose.

Section 15. Section 13-4D-1 NMSA 1978 (being Laws 1992,

Chapter 74, Section 1) is amended to read:

"13-4D-1. SHORT TITLE.--Chapter 13, Article 4D NMSA

1978 may be cited as the "Public Works Apprentice and Training

Act"."

Section 16. Section 13-4D-3 NMSA 1978 (being Laws 1992,

Chapter 74, Section 3) is amended to read:

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"13-4D-3. DEFINITIONS.--As used in the Public Works

Apprentice and Training Act:

A. "approved apprentice and training programs"

means building trades apprenticeship and training programs in

New Mexico that are recognized by the bureau of apprenticeship

and training of the United States department of labor or the

New Mexico apprenticeship council;

B. "compliance statement" means a monthly record

of an employer's contributions paid into an approved

apprentice and training program in New Mexico or into the

public works apprentice and training fund;

C. "director" or "division" means the labor

relations division of the workforce solutions department; and

D. "employer" means a contractor, subcontractor or

any person acting as a contractor on a public works project,

as that term is defined in the provisions of the Construction

Industries Licensing Act."

Section 17. Section 28-1-2 NMSA 1978 (being Laws 1969,

Chapter 196, Section 2, as amended) is amended to read:

"28-1-2. DEFINITIONS.--As used in the Human Rights Act:

A. "person" means one or more individuals, a

partnership, association, organization, corporation, joint

venture, legal representative, trustees, receivers or the

state and all of its political subdivisions;

B. "employer" means any person employing four or

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more persons and any person acting for an employer;

C. "commission" means the human rights commission;

D. "director" or "bureau" means the human rights

bureau of the labor relations division of the workforce

solutions department;

E. "employee" means any person in the employ of an

employer or an applicant for employment;

F. "labor organization" means any organization

that exists for the purpose in whole or in part of collective

bargaining or of dealing with employers concerning grievances,

terms or conditions of employment or of other mutual aid or

protection in connection with employment;

G. "employment agency" means any person regularly

undertaking with or without compensation to procure

opportunities to work or to procure, recruit or refer

employees;

H. "public accommodation" means any establishment

that provides or offers its services, facilities,

accommodations or goods to the public, but does not include a

bona fide private club or other place or establishment that is

by its nature and use distinctly private;

I. "housing accommodation" means any building or

portion of a building that is constructed or to be

constructed, which is used or intended for use as the

residence or sleeping place of any individual;

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J. "real property" means lands, leaseholds or

commercial or industrial buildings, whether constructed or to

be constructed, offered for sale or rent, and any land rented

or leased for the use, parking or storage of house trailers;

K. "secretary" means the secretary of workforce

solutions;

L. "unlawful discriminatory practices" means those

unlawful practices and acts specified in Section 28-1-7 NMSA

1978;

M. "physical or mental handicap" means a physical

or mental impairment that substantially limits one or more of

a person's major life activities. A person is also considered

to be physically or mentally handicapped if the person has a

record of a physical or mental handicap or is regarded as

having a physical or mental handicap;

N. "major life activities" means functions such as

caring for one's self, performing manual tasks, walking,

seeing, hearing, speaking, breathing, learning and working;

O. "applicant for employment" means a person

applying for a position as an employee;

P. "sexual orientation" means heterosexuality,

homosexuality or bisexuality, whether actual or perceived; and

Q. "gender identity" means a person's

self-perception, or perception of that person by another, of

the person's identity as a male or female based upon the

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person's appearance, behavior or physical characteristics that

are in accord with or opposed to the person's physical

anatomy, chromosomal sex or sex at birth."

Section 18. Section 50-14-2 NMSA 1978 (being Laws 1999,

Chapter 260, Section 2, as amended) is amended to read:

"50-14-2. DEFINITIONS.--As used in the Workforce

Development Act:

A. "board" means the state workforce development

board;

B. "chief elected official" means the chief

elected executive officer of a unit of general local

government in a local area and in a case in which a local area

includes more than one unit of general local government,

"chief elected official" means the person designated under the

agreement described in Section 117 (c)(1)(B) of the federal

Workforce Investment Act of 1998;

C. "employment training program" means a program

or a part of a program, regardless of which state or local

agency administers it, that has as its primary purpose

assisting persons in obtaining or enhancing employment;

D. "local board" means a local workforce

development board; and

E. "office" or "division" means the workforce

transition services division of the workforce solutions

department."

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Section 19. Section 50-14-9 NMSA 1978 (being Laws 2005,

Chapter 111, Section 10) is amended to read:

"50-14-9. WORKFORCE TRANSITION SERVICES DIVISION.--

A. The "workforce transition services division" is

created in the workforce solutions department.

B. The division shall be the recipient of all

grants from the United States pursuant to the federal

Workforce Investment Act of 1998 and shall disburse those

grants consistent with that act and the Workforce Development

Act.

C. The division shall administer the provisions of

the Workforce Development Act and is the governor's designee

for the state with authority to administer New Mexico's

program pursuant to the federal Workforce Investment Act of

1998. In performance of that duty and the duties set forth in

Section 50-14-10 NMSA 1978, the division has the general power

to:

(1) sue and, subject to the provisions of

the Tort Claims Act, be sued;

(2) enter into contracts, joint powers

agreements and other contracts for workforce development

services and administer related programs with other state

agencies; local governments; state institutions of higher

learning; Indian nations, tribes or pueblos; regional provider

networks; and corporations authorized to do business in the

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state;

(3) take administrative action by issuing

orders and instructions, not inconsistent with law, to ensure

implementation of and compliance with the provisions of law

for which the division is responsible and to enforce those

orders and instructions by appropriate administrative actions

or actions in courts;

(4) promulgate, following the procedure in

Subsection E of Section 9-1-5 NMSA 1978, reasonable rules

necessary to carry out the duties of the division; and

(5) take all other actions necessary to meet

the purposes of the Workforce Development Act."

Section 20. Section 50-14-10 NMSA 1978 (being Laws

2005, Chapter 111, Section 11) is amended to read:

"50-14-10. DIVISION--DUTIES.--The division shall:

A. provide technical, administrative and fiscal

agent support to the board;

B. develop a unified, comprehensive plan for

streamlining and integrating employment training programs,

including the consolidation of all employment training

programs, into the division. The division shall report

annually to the governor and the legislature generally the

progress and effectiveness of the workforce development system

no later than September 1;

C. develop a performance-based system of

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accountability for employment training programs, including the

board, local boards, one-stop centers and training providers,

which system shall include key performance benchmarks to be

used to monitor and assess performance;

D. monitor compliance with performance-based and

coordination standards, including such standards as the

division establishes by rule, with approval of the board, or

that the board has adopted in the state plan, for the state's

employment training programs regardless of funding source or

the administrative agency that receives the funds. In

performing this duty, the division:

(1) may issue subpoenas to appear and answer

questions or produce documents;

(2) may investigate substantial allegations

of improper financial or program activities;

(3) shall submit compliance reports to the

governor; and

(4) shall, with approval of the governor,

issue such corrective action orders as are necessary to

enforce compliance, including orders that suspend funding for

employment training programs or that transfer the programs to

another agency;

E. promote the active participation and

partnership with community colleges wherever possible

throughout the state, which shall include the use of community

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colleges in creating career pathways and the use of available

partnership incentives with local boards to use community

college facilities for one-stop locations, co-location

opportunities and specifically designed training programs; and

F. provide oversight and technical support for

local boards to assist them in achieving independence and

meeting performance standards while implementing statewide

goals and directions."

Section 21. Section 50-15-2 NMSA 1978 (being Laws 2005,

Chapter 257, Section 2) is amended to read:

"50-15-2. DEFINITIONS.--As used in the Day Laborer Act:

A. "check cashing service" means a business that

for a fee offers to cash checks or other payment instruments

or that advertises that it cashes checks or other payment

instruments;

B. "day labor" means employment that is under a

contract between a day labor service agency and a third-party

employer, that is occasional or irregular and that is for a

limited time period;

C. "day labor service agency" means an entity,

including a labor broker or labor pool, that provides day

laborers to third-party employers and that charges the third-

party employer for the service of providing day laborers for

employment offered by the employer;

D. "day laborer" means a person who contracts for

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day labor employment with a day labor service agency;

E. "department" means the workforce solutions

department;

F. "office worker" means a person employed to

perform clerical, secretarial or other semiskilled or skilled

work that is predominantly performed in an office setting;

G. "payment instrument" means a paycheck, payment

voucher or other negotiable instrument from an employer

provided to an employee to pay for hours worked; and

H. "third-party employer" means a person that

contracts with a day labor service agency for the employment

of day laborers."

Section 22. Section 51-1-2 NMSA 1978 (being Laws 1979,

Chapter 280, Section 11, as amended) is amended to read:

"51-1-2. DEFINITIONS.--As used in the Unemployment

Compensation Law:

A. "department" means the workforce solutions

department;

B. "division" means the workforce transition

services division of the department, the director of the

division or an employee of the division exercising authority

lawfully delegated to the employee by the director; and

C. "secretary" means the secretary of workforce

solutions or an employee of the department exercising

authority lawfully delegated to the employee by the

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secretary."

Section 23. TEMPORARY PROVISIONS--TRANSFERS.--

A. On July 1, 2007, all functions, personnel,

appropriations, money, buildings, files, records, furniture,

equipment and other property of the labor department,

including any divisions of the department, are transferred to

the workforce solutions department.

B. On July 1, 2007, all functions, personnel,

appropriations, money, files, records, furniture, equipment

and other property of the office of workforce training and

development are transferred to the workforce solutions

department.

C. On July 1, 2007, all contractual obligations of

the labor department, including any divisions of the

department, are transferred to the workforce solutions

department.

D. On July 1, 2007, all contractual obligations of

the office of workforce training and development are

transferred to the workforce solutions department.

E. On July 1, 2007, all statutory references to

the labor department or any divisions of the labor department

shall be deemed to be references to the workforce solutions

department.

F. On July 1, 2007, all statutory references to

the office of workforce training and development shall be

deemed to be references to the workforce solutions department.

Section 24. REPEAL.--Sections 9-18-1 through 9-18-15,

50-1-1.5, 50-1-9, 50-6-15 and 50-14-16 NMSA 1978 (being Laws

1987, Chapter 342, Sections 1 through 14, Laws 1993, Chapter

16, Section 2, Laws 1979, Chapter 204, Section 8, Laws 1987,

Chapter 333, Section 2, Laws 1963, Chapter 175, Section 4 and

Laws 2005, Chapter 111, Section 25, as amended) are repealed.

Section 25. EFFECTIVE DATE.--The effective date of the

provisions of this act is July 1, 2007.

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