0001| AN ACT | 0002| RELATING TO UNEMPLOYMENT COMPENSATION; PROVIDING FOR VOLUNTARY | 0003| WITHHOLDING OF FEDERAL INCOME TAX. | 0004| | 0005| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0006| Section 1. Section 51-1-8 NMSA 1978 (being Laws 1936 (S.S.), | 0007| Chapter 1, Section 6, as amended) is amended to read: | 0008| "51-1-8. CLAIMS FOR BENEFITS.-- | 0009| A. Claims for benefits shall be made in accordance with such | 0010| regulations as the secretary may prescribe. Each employer shall post | 0011| and maintain printed notices, in places readily accessible to employees, | 0012| concerning their rights to file claims for unemployment benefits upon | 0013| termination of their employment. Such notices shall be supplied by the | 0014| division to each employer without cost to him. | 0015| B. A representative designated by the secretary as a claims | 0016| examiner shall promptly examine the application and each weekly claim | 0017| and, on the basis of the facts found, shall determine whether the | 0018| claimant is unemployed, the week with respect to which benefits shall | 0019| commence, the weekly benefit amount payable, the maximum duration of | 0020| benefits, whether the claimant is eligible for benefits pursuant to | 0021| Section 51-1-5 NMSA 1978 and whether the claimant shall be disqualified | 0022| pursuant to Section 51-1-7 NMSA 1978. With the approval of the | 0023| secretary, the claims examiner may refer, without determination, claims | 0024| or any specified issues involved therein that raise complex questions of | 0025| fact or law to a hearing officer for the division for a fair hearing and | 0001| decision in accordance with the procedure described in Subsection D of | 0002| this section. The claims examiner shall promptly notify the claimant | 0003| and any other interested party of the determination and the reasons | 0004| therefor. Unless the claimant or any such interested party, within | 0005| fifteen calendar days after the date of notification or mailing of such | 0006| determination, files an appeal from such determination, such | 0007| determination shall be the final decision of the division; provided that | 0008| the claims examiner may reconsider a nonmonetary determination if | 0009| additional information not previously available is provided or obtained | 0010| or whenever he finds an error in the application of law has occurred, | 0011| but no redetermination shall be made more than twenty days from the date | 0012| of the initial nonmonetary determination. Notice of a nonmonetary | 0013| redetermination shall be given to all interested parties and shall be | 0014| subject to appeal in the same manner as the original nonmonetary | 0015| determination. If an appeal is pending at the time a redetermination is | 0016| issued, the appeal, unless withdrawn, shall be treated as an appeal from | 0017| such redetermination. | 0018| C. In the case of a claim for waiting period credit or | 0019| benefits, "interested party", for purposes of determinations and | 0020| adjudication proceedings and notices thereof, means: | 0021| (1) in the event of an issue concerning a separation | 0022| from work for reasons other than lack of work, the claimant's most | 0023| recent employer or most recent employing unit; | 0024| (2) in the event of an issue concerning a separation | 0025| from work for lack of work, the employer or employing unit from whom the | 0001| claimant separated for reasons other than lack of work if he has not | 0002| worked and earned wages in insured work or bona fide employment other | 0003| than self-employment in an amount equal to or exceeding five times his | 0004| weekly benefit amount; or | 0005| (3) in all other cases involving the allowance or | 0006| disallowance of a claim, the secretary, the claimant and any employing | 0007| unit directly involved in the facts at issue. | 0008| D. Upon appeal by any party, a hearing officer designated by | 0009| the secretary shall afford the parties reasonable opportunity for a fair | 0010| hearing to be held de novo, and the hearing officer shall issue findings | 0011| of fact and a decision which affirms, modifies or reverses the | 0012| determination of the claims examiner or tax representative on the facts | 0013| or the law, based upon the evidence introduced at such hearing, | 0014| including the documents and statements in the claim or tax records of | 0015| the division. All hearings shall be held in accordance with regulations | 0016| of the secretary and decisions issued promptly in accordance with time | 0017| lapse standards promulgated by the secretary of the United States | 0018| department of labor. The parties shall be duly notified of the | 0019| decision, together with the reasons therefor, which shall be deemed to | 0020| be the final decision of the department, unless within fifteen days | 0021| after the date of notification or mailing of such decision further | 0022| appeal is initiated pursuant to Subsection H of this section. | 0023| E. Except with the consent of the parties, no hearing | 0024| officer or members of the board of review, established in Subsection F | 0025| of this section, or secretary shall sit in any administrative or | 0001| adjudicatory proceeding in which: | 0002| (1) either of the parties is related to him by | 0003| affinity or consanguinity within the degree of first cousin; | 0004| (2) he was counsel for either party in that action; or | 0005| (3) he has an interest which would prejudice his | 0006| rendering an impartial decision. | 0007| The secretary, any member of the board of review or appeal | 0008| tribunal hearing officer shall withdraw from any proceeding in which he | 0009| cannot accord a fair and impartial hearing. Any party may request a | 0010| disqualification of any appeal tribunal hearing officer or board of | 0011| review member by filing an affidavit with the board of review or appeal | 0012| tribunal promptly upon discovery of the alleged grounds for | 0013| disqualification, stating with particularity the grounds upon which it | 0014| is claimed that the person cannot be fair and impartial. The | 0015| disqualification shall be mandatory if sufficient factual basis is set | 0016| forth in the affidavit of disqualification. If a member of the board of | 0017| review is disqualified or withdraws from any proceeding, the remaining | 0018| members of the board of review may appoint an appeal tribunal hearing | 0019| officer to sit on the board of review for the proceeding involved. | 0020| F. There is established within the department for the | 0021| purpose of providing higher level administrative appeal and review of | 0022| determinations of a claims examiner or decisions issued by a hearing | 0023| officer pursuant to Subsection B or D of this section a "board of | 0024| review" consisting of three members. Two members shall be appointed by | 0025| the governor with the consent of the senate. The members so appointed | 0001| shall hold office at the pleasure of the governor for terms of four | 0002| years. One member appointed by the governor shall be a person who, on | 0003| account of his previous vocation, employment or affiliation, can be | 0004| classed as a representative of employers, and the other member appointed | 0005| by the governor shall be a person who, on account of his previous | 0006| vocation, employment or affiliation, can be classed as a representative | 0007| of employees. The third member shall be an employee of the department | 0008| appointed by the secretary who shall serve as chairman of the board. | 0009| Either member of the board of review appointed by the governor who has | 0010| missed two consecutive meetings of the board may be removed from the | 0011| board by the governor. Actions of the board shall be taken by majority | 0012| vote. If a vacancy on the board in a position appointed by the governor | 0013| occurs between sessions of the legislature, the position shall be filled | 0014| by the governor until the next regular legislative session. The board | 0015| shall meet at the call of the secretary. Members of the board appointed | 0016| by the governor shall be paid per diem and mileage in accordance with | 0017| the Per Diem and Mileage Act for necessary travel to attend regularly | 0018| scheduled meetings of the board of review for the purpose of conducting | 0019| the board's appellate and review duties. | 0020| G. The board of review shall hear and review all cases | 0021| appealed in accordance with Subsection H of this section. The board of | 0022| review may modify, affirm or reverse the decision of the hearing officer | 0023| or remand any matter to the claims examiner, tax representative or | 0024| hearing officer for further proceedings. Each member appointed by the | 0025| governor shall be compensated at the rate of fifteen dollars ($15.00) | 0001| for each case reviewed up to a maximum compensation of twelve thousand | 0002| dollars ($12,000) in any one fiscal year. | 0003| H. Any party aggrieved by a final decision of a hearing | 0004| officer may file, in accordance with regulations prescribed by the | 0005| secretary, an application for appeal and review of such decision with | 0006| the secretary. The secretary shall review the application and shall, | 0007| within fifteen days after receipt of the application, either affirm the | 0008| decision of the hearing officer, remand the matter to the hearing | 0009| officer or the claims examiner for an additional hearing or refer the | 0010| decision to the board of review for further review and decision on the | 0011| merits of the appeal. If the secretary affirms the decision of the | 0012| hearing officer, that decision shall be the final administrative | 0013| decision of the department and any appeal therefrom shall be taken to | 0014| the district court in accordance with the provisions of Subsections M | 0015| and N of this section. If the secretary remands a matter to a hearing | 0016| officer for an additional hearing, judicial review shall be permitted | 0017| only after issuance of a final administrative decision. If the | 0018| secretary refers the decision of the hearing officer to the board of | 0019| review for further review, the board's decision on the merits of the | 0020| appeal will be the final administrative decision of the department, | 0021| which may be appealed to the district court in accordance with the | 0022| provisions of Subsections M and N of this section. If the secretary | 0023| takes no action within fifteen days of receipt of the application for | 0024| appeal and review, the decision will be promptly scheduled for review by | 0025| the board of review as though it had been referred by the secretary. | 0001| The secretary may request the board of review to review a decision of a | 0002| hearing officer that the secretary believes to be inconsistent with the | 0003| law or with applicable rules of interpretation or that is not supported | 0004| by the evidence, and the board of review shall grant the request if it | 0005| is filed within fifteen days of the issuance of the decision of the | 0006| hearing officer. The secretary may also direct that any pending | 0007| determination or adjudicatory proceeding be removed to the board of | 0008| review for a final decision. If the board of review holds a hearing on | 0009| any matter, the hearing shall be conducted by a quorum of the board of | 0010| review in accordance with regulations prescribed by the secretary for | 0011| hearing appeals. The board of review shall promptly notify the | 0012| interested parties of its findings of fact and decision. A decision of | 0013| the board of review on any disputed matter reviewed and decided by it | 0014| shall be based upon the law and the lawful rules of interpretation | 0015| issued by the secretary, and it shall be the final administrative | 0016| decision of the department, except in cases of remand. If the board of | 0017| review remands a matter to a hearing officer, claims examiner or tax | 0018| representative, judicial review shall be permitted only after issuance | 0019| of a final administrative decision. | 0020| I. Notwithstanding any other provision of this section | 0021| granting any party the right to appeal, benefits shall be paid promptly | 0022| in accordance with a determination or a decision of a claims examiner, | 0023| hearing officer, secretary, board of review or a reviewing court, | 0024| regardless of the pendency of the period to file an appeal or petition | 0025| for judicial review that is provided with respect thereto in Subsection | 0001| D or M of this section or the pendency of any such filing or petition | 0002| until such determination or decision has been modified or reversed by a | 0003| subsequent decision. The provisions of this subsection shall apply to | 0004| all claims for benefits pending on the date of its enactment. | 0005| J. If a prior determination or decision allowing benefits is | 0006| affirmed by a decision of the department, including the board of review | 0007| or a reviewing court, such benefits shall be paid promptly regardless of | 0008| any further appeal which may thereafter be available to the parties, and | 0009| no injunction, supersedeas, stay or other writ or process suspending the | 0010| payment of such benefits shall be issued by the secretary or board of | 0011| review or any court, and no action to recover such benefits paid to a | 0012| claimant shall be taken. If a determination or decision allowing | 0013| benefits is finally modified or reversed, the appropriate contributing | 0014| employer's account will be relieved of benefit charges in accordance | 0015| with Subsection B of Section 51-1-11 NMSA 1978. | 0016| K. The manner in which disputed claims shall be presented, | 0017| the reports thereon required from the claimant and from employers and | 0018| the conduct of hearings and appeals shall be in accordance with rules | 0019| prescribed by the secretary for determining the rights of the parties, | 0020| whether or not such rules conform to common law or statutory rules of | 0021| evidence and other technical rules of procedure. A hearing officer or | 0022| the board of review may refer to the secretary for interpretation any | 0023| question of controlling legal significance, and the secretary shall | 0024| issue a declaratory interpretation, which shall be binding upon the | 0025| decision of the hearing officer and the board of review. A full and | 0001| complete record shall be kept of all proceedings in connection with a | 0002| disputed claim. All testimony at any hearing upon a disputed claim | 0003| shall be recorded but need not be transcribed unless the disputed claim | 0004| is appealed to the district court. | 0005| L. Witnesses subpoenaed pursuant to this section shall be | 0006| allowed fees at a rate fixed by the secretary. Such fees and all | 0007| administrative expenses of proceedings involving disputed claims shall | 0008| be deemed a part of the expense of administering the Unemployment | 0009| Compensation Law. | 0010| M. Any determination or decision of a claims examiner or | 0011| hearing officer or by a representative of the tax section of the | 0012| department in the absence of an appeal therefrom as provided by this | 0013| section shall become final fifteen days after the date of notification | 0014| or mailing thereof, and judicial review thereof shall be permitted only | 0015| after any party claiming to be aggrieved thereby has exhausted his | 0016| remedies as provided in Subsection H of this section. The division and | 0017| any employer or claimant who is affected by the decision shall be joined | 0018| as a party in any judicial action involving any such decision. All | 0019| parties shall be served with an endorsed copy of the petition within | 0020| thirty days from the date of filing and an endorsed copy of the order | 0021| granting the petition within fifteen days from entry of the order. | 0022| Service on the department shall be made on the secretary or his | 0023| designated legal representative either by mail with accompanying | 0024| certification of service or by personal service. The division may be | 0025| represented in any such judicial action by an attorney employed by the | 0001| department or, when requested by the secretary, by the attorney general | 0002| or any district attorney. | 0003| N. The final decision of the secretary or board of review | 0004| upon any disputed matter may be reviewed both upon the law, including | 0005| the lawful rules of interpretation issued by the secretary, and the | 0006| facts by the district court of the county wherein the person seeking the | 0007| review resides upon certiorari, unless it is determined by the district | 0008| court where the petition is filed that, as a matter of equity and due | 0009| process, venue should be in a different county. For the purpose of such | 0010| review, the division shall return on such certiorari the reports and all | 0011| of the evidence heard by it on any such reports and all the papers and | 0012| documents in its files affecting the matters and things involved in such | 0013| certiorari. The district court shall render its judgment after hearing, | 0014| and either the department or any other party thereto affected may appeal | 0015| from such judgment to the court of appeals in accordance with the rules | 0016| of appellate procedure. Such certiorari shall not be granted unless the | 0017| same is applied for within thirty days from the date of the final | 0018| decision of the secretary or board of review. Such certiorari shall be | 0019| heard in a summary manner and shall be given precedence over all other | 0020| civil cases except cases arising under the Workers' Compensation Act of | 0021| this state. It shall not be necessary in any proceedings before the | 0022| division to enter exceptions to the rulings and no bond shall be | 0023| required in obtaining certiorari from the district court as hereinabove | 0024| provided, but such certiorari shall be granted as a matter of right to | 0025| the party applying therefor." | 0001| Section 2. A new section of the Unemployment Compensation Law is | 0002| enacted to read: | 0003| " VOLUNTARY WITHHOLDING OF FEDERAL INCOME TAX.-- | 0004| A. Every individual filing a new claim for unemployment | 0005| compensation shall, at the time of filing such claim, be advised in | 0006| writing that: | 0007| (1) unemployment compensation is subject to federal, | 0008| state and local income tax; | 0009| (2) requirements exist pertaining to estimated tax | 0010| payments; | 0011| (3) the individual may elect to have federal income | 0012| tax deducted and withheld from the individual's unemployment | 0013| compensation payments at the amount specified in the Internal Revenue | 0014| Code of 1986; and | 0015| (4) the individual is permitted to change a previously | 0016| elected withholding status one time during each benefit year. | 0017| B. Amounts deducted and withheld from unemployment | 0018| compensation shall remain in the fund until transferred to the federal | 0019| internal revenue service. | 0020| C. The division shall follow all procedures specified by the | 0021| United States department of labor and the federal internal revenue | 0022| service pertaining to the deducting and withholding of income tax. | 0023| D. Amounts shall be deducted and withheld under this section | 0024| only after amounts are deducted and withheld for any overpayments of | 0025| unemployment compensation, child support obligations or any other | 0001| amounts required to be deducted and withheld under the Unemployment | 0002| Compensation Law. | 0003| E. The provisions of this section apply to unemployment | 0004| compensation payments made after December 31, 1996." | 0005| Section 3. EFFECTIVE DATE.--The effective date of the provisions | 0006| of this act is July 1, 1996. | 0007| | 0008| HB | 0009| 375 | 0010| Page  |