0001| HOUSE BILL 328
|
0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
|
0003| INTRODUCED BY
|
0004| TERRY T. MARQUARDT
|
0005|
|
0006|
|
0007|
|
0008|
|
0009|
|
0010| AN ACT
|
0011| RELATING TO UNEMPLOYMENT COMPENSATION; AMENDING AND ENACTING
|
0012| SECTIONS OF THE UNEMPLOYMENT COMPENSATION LAW.
|
0013|
|
0014| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
|
0015| Section 1. Section 51-1-11 NMSA 1978 (being Laws 1961,
|
0016| Chapter 139, Section 3, as amended) is amended to read:
|
0017| "51-1-11. FUTURE RATES BASED ON BENEFIT EXPERIENCE.--
|
0018| A. The division shall maintain a separate account
|
0019| for each contributing employer and shall credit his account
|
0020| with all contributions paid by him under the Unemployment
|
0021| Compensation Law. Nothing in the Unemployment Compensation Law
|
0022| shall be construed to grant any employer or individuals in his
|
0023| service prior claims or rights to the amounts paid by the
|
0024| employer into the fund.
|
0025| B. Benefits paid to an individual shall be charged
|
0001| against the accounts of his base-period employers on a pro rata
|
0002| basis according to the proportion of his total base-period
|
0003| wages received from each, except that no benefits paid to a
|
0004| claimant as extended benefits under the provisions of Section
|
0005| 51-1-48 NMSA 1978 shall be charged to the account of any base-
|
0006| period employer who is not on a reimbursable basis and who is
|
0007| not a governmental entity and, except as the secretary shall by
|
0008| regulation prescribe otherwise, in the case of benefits paid to
|
0009| an individual who:
|
0010| (1) left the employ of a base-period employer
|
0011| who is not on a reimbursable basis voluntarily without good
|
0012| cause in connection with his employment;
|
0013| (2) was discharged from the employment of a
|
0014| base-period employer who is not on a reimbursable basis for
|
0015| misconduct connected with his work;
|
0016| (3) received benefits based upon wages earned
|
0017| from a base-period employer who is not on a reimbursable basis
|
0018| for work performed in a work-release program designed to give
|
0019| an inmate of a correctional institution an opportunity to work
|
0020| while serving a term of incarceration if the inmate's
|
0021| separation was caused by his release from prison;
|
0022| (4) is employed part-time by a base-period
|
0023| employer who is not on a reimbursable basis and who continues
|
0024| to furnish the individual the same part-time work while the
|
0025| individual is separated from full-time work for a
|
0001| nondisqualifying reason; or
|
0002| (5) received benefits based upon wages earned
|
0003| from a base-period employer who is not on a reimbursable basis
|
0004| while attending approved training under the provisions of
|
0005| Subsection E of Section 51-1-5 NMSA 1978.
|
0006| C. The division shall not charge a contributing or
|
0007| reimbursing base-period employer's account with any portion of
|
0008| benefit amounts [which] that the division can bill to or
|
0009| recover from the federal government as either regular or
|
0010| extended benefits.
|
0011| D. All contributions to the fund shall be pooled
|
0012| and available to pay benefits to any individual entitled
|
0013| thereto, irrespective of the source of such contributions. The
|
0014| standard rate of contributions payable by each employer shall
|
0015| be five and four-tenths percent.
|
0016| E. No employer's rate shall be varied from the
|
0017| standard rate for any calendar year unless, as of the
|
0018| computation date for that year, his account has been chargeable
|
0019| with benefits throughout the preceding thirty-six months,
|
0020| except that:
|
0021| (1) the provisions of this subsection shall
|
0022| not apply to governmental entities;
|
0023| (2) subsequent to December 31, 1984, any
|
0024| employing unit that becomes an employer subject to the payment
|
0025| of contributions under the Unemployment Compensation Law or has
|
0001| been an employer subject to the payment of contributions at a
|
0002| standard rate of two and seven-tenths percent through December
|
0003| 31, 1984 shall be subject to the payment of contributions at
|
0004| the reduced rate of two and seven-tenths percent until, as of
|
0005| the computation date of a particular year, the employer's
|
0006| account has been chargeable with benefits throughout the
|
0007| preceding thirty-six months; and
|
0008| (3) any individual, type of organization or
|
0009| employing unit that acquires all or part of the trade or
|
0010| business of another employing unit, pursuant to Paragraphs (2)
|
0011| and (3) of Subsection E of Section 51-1-42 NMSA 1978, that has
|
0012| a reduced rate of contribution shall be entitled to the
|
0013| transfer of the reduced rate to the extent permitted under
|
0014| Subsection G of this section.
|
0015| F. The secretary shall, for the year 1942 and for
|
0016| each calendar year thereafter, classify employers in accordance
|
0017| with their actual experience in the payment of contributions
|
0018| and with respect to benefits charged against their accounts,
|
0019| with a view of fixing such contribution rates as will reflect
|
0020| such benefit experience. Each employer's rate for any calendar
|
0021| year shall be determined on the basis of his record and the
|
0022| condition of the fund as of the computation date for such
|
0023| calendar year.
|
0024| An employer may make voluntary payments in addition to the
|
0025| contributions required under the Unemployment Compensation Law,
|
0001| which shall be credited to his account in accordance with
|
0002| department regulation. The voluntary payments shall be
|
0003| included in the employer's account as of the employer's most
|
0004| recent computation date if they are made on or before the
|
0005| following March 1. Voluntary payments when accepted from an
|
0006| employer [will] shall not be refunded in whole or in part.
|
0007| G. In the case of a transfer of an employing
|
0008| enterprise, the experience history of the transferred
|
0009| enterprise as provided in Subsection F of this section [will]
|
0010| shall be transferred from the predecessor employer to the
|
0011| successor under the following conditions and in accordance with
|
0012| the applicable regulations of the secretary:
|
0013| (1) Definitions:
|
0014| (a) "employing enterprise" is a business
|
0015| activity engaged in by a contributing employing unit in which
|
0016| one or more persons have been employed within the current or
|
0017| the three preceding calendar quarters;
|
0018| (b) "predecessor" means the owner and
|
0019| operator of an employing enterprise immediately prior to the
|
0020| transfer of such enterprise;
|
0021| (c) "successor" means any individual or
|
0022| any type of organization that acquires an employing enterprise
|
0023| and continues to operate such business entity; and
|
0024| (d) "experience history" means the
|
0025| experience rating record and reserve account, including the
|
0001| actual contributions, benefit charges and payroll experience of
|
0002| the employing enterprise.
|
0003| (2) For the purpose of this section, two or
|
0004| more employers who are parties to or the subject of any
|
0005| transaction involving the transfer of an employing enterprise
|
0006| shall be deemed to be a single employer and the experience
|
0007| history of the employing enterprise shall be transferred to the
|
0008| successor employer if the successor employer has acquired by
|
0009| the transaction all of the business enterprises of the
|
0010| predecessor; provided that:
|
0011| (a) all contributions, interest and
|
0012| penalties due from the predecessor employer have been paid;
|
0013| (b) notice of the transfer has been
|
0014| given in accordance with the regulations of the secretary
|
0015| within four years of the transaction transferring the employing
|
0016| enterprise or the date of the actual transfer of control and
|
0017| operation of the employing enterprise;
|
0018| (c) in the case of the transfer of an
|
0019| employing enterprise, the successor employer must notify the
|
0020| division of the acquisition on or before the due date of the
|
0021| successor employer's first wage and contribution report. If
|
0022| the successor employer fails to notify the division of the
|
0023| acquisition within this time limit, the division, when it
|
0024| receives actual notice, [will] shall effect the transfer of
|
0025| the experience history and applicable rate of contribution
|
0001| retroactively to the date of the acquisition, and the successor
|
0002| shall pay a penalty of fifty dollars ($50.00); and
|
0003| (d) where the transaction involves only
|
0004| a merger, consolidation or other form of reorganization without
|
0005| a substantial change in the ownership and controlling interest
|
0006| of the business entity, as determined by the secretary, the
|
0007| limitations on transfers stated in Subparagraphs (a), (b) and
|
0008| (c) of this paragraph shall not apply. No party to a merger,
|
0009| consolidation or other form of reorganization described in this
|
0010| paragraph shall be relieved of liability for any contributions,
|
0011| interest or penalties due and owing from the employing
|
0012| enterprise at the time of the merger, consolidation or other
|
0013| form of reorganization.
|
0014| (3) The applicable experience history may be
|
0015| transferred to the successor in the case of a partial transfer
|
0016| of an employing enterprise if the successor has acquired one or
|
0017| more of the several employing enterprises of a predecessor but
|
0018| not all of the employing enterprises of the predecessor and
|
0019| each employing enterprise so acquired was operated by the
|
0020| predecessor as a separate store, factory, shop or other
|
0021| separate employing enterprise and the predecessor, throughout
|
0022| the entire period of his contribution with liability applicable
|
0023| to each enterprise transferred, has maintained and preserved
|
0024| payroll records [which] that, together with records of
|
0025| contribution liability and benefit chargeability, can be
|
0001| separated by the parties from the enterprises retained by the
|
0002| predecessor to the satisfaction of the secretary or his
|
0003| delegate. A partial experience history transfer will be made
|
0004| only if:
|
0005| (a) the successor notifies the division
|
0006| of the acquisition, in writing, not later than the due date of
|
0007| the successor's first quarterly wage and contribution report
|
0008| after the effective date of the acquisition;
|
0009| (b) the successor files an application
|
0010| provided by the division that contains the endorsement of the
|
0011| predecessor within thirty days from the delivery or mailing of
|
0012| such application by the division to the successor's last known
|
0013| address; and
|
0014| (c) the successor files with the
|
0015| application a Form ES-903A or its equivalent with a schedule of
|
0016| the name and social security number of and the wages paid to
|
0017| and the contributions paid for each employee for the three and
|
0018| one-half year period preceding the date of computation as
|
0019| defined in Subparagraph (d) of Paragraph (3) of Subsection H of
|
0020| this section through the date of transfer or such lesser
|
0021| period as the enterprises transferred may have been in
|
0022| operation. The application and Form ES-903A [must] shall
|
0023| be supported by the predecessor's permanent employment records,
|
0024| which [must] shall be available for audit by the division.
|
0025| The application and Form ES-903A shall be reviewed by the
|
0001| division and, upon approval, the percentage of the
|
0002| predecessor's experience history attributable to the
|
0003| enterprises transferred shall be transferred to the successor.
|
0004| The percentage shall be obtained by dividing the taxable
|
0005| payrolls of the transferred enterprises for such three and one-
|
0006| half year period preceding the date of computation or such
|
0007| lesser period as the enterprises transferred may have been in
|
0008| operation by the predecessor's entire payroll.
|
0009| H. For each calendar year, adjustments of
|
0010| contribution rates below the standard or reduced rate and
|
0011| measures designed to protect the fund are provided as follows:
|
0012| (1) The total assets in the fund and the total
|
0013| of the last annual payrolls of all employers subject to
|
0014| contributions as of the computation date for each year shall be
|
0015| determined. These annual totals are here called "the fund" and
|
0016| "total payrolls". For each year, the "reserve" of each
|
0017| employer qualified under Subsection E of this section shall be
|
0018| fixed by the excess of his total contributions over total
|
0019| benefit charges computed as a percentage of his average payroll
|
0020| reported for contributions. The determination of each
|
0021| employer's annual rate, computed as of the computation date for
|
0022| each calendar year, shall be made by matching his reserve as
|
0023| shown in the reserve column with the corresponding rate shown
|
0024| in the applicable rate schedule of the table provided in
|
0025| Paragraph (4) of this subsection.
|
0001| (2) Each employer's rate for each calendar
|
0002| year commencing January 1, 1979 or thereafter shall be:
|
0003| (a) the rate in schedule 1 of the table
|
0004| provided in Paragraph (4) of this subsection on the
|
0005| corresponding line as his reserve if the fund equals at least
|
0006| four percent of the total payrolls;
|
0007| (b) the rate in schedule 2 of the table
|
0008| provided in Paragraph (4) of this subsection on the
|
0009| corresponding line if the fund has dropped to between four
|
0010| percent and three percent;
|
0011| (c) the rate in schedule 3 of the table
|
0012| provided in Paragraph (4) of this subsection on the
|
0013| corresponding line if the fund has dropped to between three
|
0014| percent and two percent;
|
0015| (d) the rate in schedule 4 of the table
|
0016| provided in Paragraph (4) of this subsection on the
|
0017| corresponding line if the fund has dropped to between two
|
0018| percent and one and one-half percent;
|
0019| (e) the rate in schedule 5 of the table
|
0020| provided in Paragraph (4) of this subsection on the
|
0021| corresponding line if the fund has dropped to between one and
|
0022| one-half percent and one percent; or
|
0023| (f) the rate in schedule 6 of the table
|
0024| provided in Paragraph (4) of this subsection on the
|
0025| corresponding line if the fund has dropped below one percent.
|
0001| (3) As used in this section:
|
0002| (a) "annual payroll" means the total
|
0003| amount of remuneration from an employer for employment during a
|
0004| twelve-month period ending on a computation date, and "average
|
0005| payroll" means the average of the last three annual payrolls;
|
0006| (b) "base-period wages" means the wages
|
0007| of an individual for insured work during his base period on the
|
0008| basis of which his benefit rights were determined;
|
0009| (c) "base-period employers" means the
|
0010| employers of an individual during his base period; and
|
0011| (d) "computation date" for each calendar
|
0012| year means the close of business on June 30 of the preceding
|
0013| calendar year.
|
0014| (4) Table of employer reserves and
|
0015| contribution rate schedules:
|
0016| Employer Contribution Contribution Contribution
|
0017| Reserve Schedule 1 Schedule 2 Schedule 3
|
0018| 10.0% and over 0.1% 0.3% 0.6%
|
0019| 9.0%-9.9% 0.3% 0.6% 0.9%
|
0020| 8.0%-8.9% 0.6% 0.9% 1.2%
|
0021| 7.0%-7.9% 0.9% 1.2% 1.5%
|
0022| 6.0%-6.9% 1.2% 1.5% 1.8%
|
0023| 5.0%-5.9% 1.5% 1.8% 2.1%
|
0024| 4.0%-4.9% 1.8% 2.1% 2.4%
|
0025| 3.0%-3.9% 2.1% 2.4% 2.7%
|
0001| 2.0%-2.9% 2.4% 2.7% 3.0%
|
0002| 1.0%-1.9% 2.7% 3.0% 3.3%
|
0003| 0.9%-0.0% 3.0% 3.3% 3.6%
|
0004| (-0.1%)-(-0.5%) 3.3% 3.6% 3.9%
|
0005| (-0.5%)-(-1.0%) 4.2% 4.2% 4.2%
|
0006| (-1.0%)-(-2.0%) 5.0% 5.0% 5.0%
|
0007| Under (-2.0%) 5.4% 5.4% 5.4%
|
0008| Employer Contribution Contribution Contribution
|
0009| Reserve Schedule 4 Schedule 5 Schedule 6
|
0010| 10.0% and over 0.9% 1.2% 2.7%
|
0011| 9.0%-9.9% 1.2% 1.5% 2.7%
|
0012| 8.0%-8.9% 1.5% 1.8% 2.7%
|
0013| 7.0%-7.9% 1.8% 2.1% 2.7%
|
0014| 6.0%-6.9% 2.1% 2.4% 2.7%
|
0015| 5.0%-5.9% 2.4% 2.7% 3.0%
|
0016| 4.0%-4.9% 2.7% 3.0% 3.3%
|
0017| 3.0%-3.9% 3.0% 3.3% 3.6%
|
0018| 2.0%-2.9% 3.3% 3.6% 3.9%
|
0019| 1.0%-1.9% 3.6% 3.9% 4.2%
|
0020| 0.9%-0.0% 3.9% 4.2% 4.5%
|
0021| (-0.1%)-(-0.5%) 4.2% 4.5% 4.8%
|
0022| (-0.5%)-(-1.0%) 4.5% 4.8% 5.1%
|
0023| (-1.0%)-(-2.0%) 5.0% 5.1% 5.3%
|
0024| Under (-2.0%) 5.4% 5.4% 5.4%.
|
0025| I. The division shall promptly notify each employer
|
0001| of his rate of contributions as determined for any calendar
|
0002| year pursuant to this section. Such notification shall include
|
0003| the amount determined as the employer's average payroll, the
|
0004| total of all his contributions paid on his own behalf and
|
0005| credited to his account for all past years and total benefits
|
0006| charged to his account for all such years. Such determination
|
0007| shall become conclusive and binding upon the employer unless,
|
0008| within thirty days after the mailing of notice thereof to his
|
0009| last known address or in the absence of mailing, within thirty
|
0010| days after the delivery of such notice, the employer files an
|
0011| application for review and redetermination, setting forth his
|
0012| reason therefor. The employer shall be granted an opportunity
|
0013| for a fair hearing in accordance with regulations prescribed by
|
0014| the secretary, but no employer shall have standing, in any
|
0015| proceeding involving his rate of contributions or contribution
|
0016| liability, to contest the chargeability to his account of any
|
0017| benefits paid in accordance with a determination,
|
0018| redetermination or decision pursuant to Section 51-1-8 NMSA
|
0019| 1978, except upon the ground that the services on the basis of
|
0020| which such benefits were found to be chargeable did not
|
0021| constitute services performed in employment for him and only in
|
0022| the event that he was not a party to such determination,
|
0023| redetermination or decision, or to any other proceedings under
|
0024| the Unemployment Compensation Law in which the character of
|
0025| such services was determined. The employer shall be promptly
|
0001| notified of the decision on his application for
|
0002| redetermination, which shall become final unless, within
|
0003| fifteen days after the mailing of notice thereof to his last
|
0004| known address or in the absence of mailing, within fifteen days
|
0005| after the delivery of such notice, further appeal is initiated
|
0006| pursuant to Subsection D of Section 51-1-8 NMSA 1978.
|
0007| J. The division [will] shall provide each
|
0008| contributing employer, within ninety days of the end of each
|
0009| calendar quarter, a written determination of benefits
|
0010| chargeable to his account. Such determination shall become
|
0011| conclusive and binding upon the employer for all purposes
|
0012| unless, within thirty days after the mailing of the
|
0013| determination to his last known address or in the absence of
|
0014| mailing, within thirty days after the delivery of such
|
0015| determination, the employer files an application for review and
|
0016| redetermination, setting forth his reason therefor. The
|
0017| employer shall be granted an opportunity for a fair hearing in
|
0018| accordance with regulations prescribed by the secretary, but no
|
0019| employer shall have standing in any proceeding involving his
|
0020| contribution liability to contest the chargeability to his
|
0021| account of any benefits paid in accordance with a
|
0022| determination, redetermination or decision pursuant to Section
|
0023| 51-1-8 NMSA 1978, except upon the ground that the services on
|
0024| the basis of which such benefits were found to be chargeable
|
0025| did not constitute services performed in employment for him and
|
0001| only in the event that he was not a party to such
|
0002| determination, redetermination or decision, or to any other
|
0003| proceedings under the Unemployment Compensation Law in which
|
0004| the character of such services was determined. The employer
|
0005| shall be promptly notified of the decision on his application
|
0006| for redetermination, which shall become final unless, within
|
0007| fifteen days after the mailing of notice thereof to his last
|
0008| known address or in the absence of mailing, within fifteen days
|
0009| after the delivery of such notice, further appeal is initiated
|
0010| pursuant to Subsection D of Section 51-1-8 NMSA 1978.
|
0011| K. The contributions, together with interest and
|
0012| penalties thereon imposed by the Unemployment Compensation Law,
|
0013| shall not be assessed nor shall action to collect the same be
|
0014| commenced more than four years after a report showing the
|
0015| amount of the contributions was due. In the case of a false or
|
0016| fraudulent contribution report with intent to evade
|
0017| contributions or a willful failure to file a report of all
|
0018| contributions due, the contributions, together with interest
|
0019| and penalties thereon, may be assessed or an action to collect
|
0020| such contributions may be begun at any time. Before the
|
0021| expiration of such period of limitation, the employer and the
|
0022| secretary may agree in writing to an extension thereof and the
|
0023| period so agreed on may be extended by subsequent agreements in
|
0024| writing. In any case where the assessment has been made and
|
0025| action to collect has been commenced within four years of the
|
0001| due date of any contribution, interest or penalty, including
|
0002| the filing of a warrant of lien by the secretary pursuant to
|
0003| Section 51-1-36 NMSA 1978, such action shall not be subject to
|
0004| any period of limitation.
|
0005| L. The secretary shall correct any error in the
|
0006| determination of an employer's rate of contribution during the
|
0007| calendar year to which the erroneous rate applies,
|
0008| notwithstanding that notification of the employer's rate of
|
0009| contribution may have been issued and contributions paid
|
0010| pursuant to the notification. Upon issuance by the division of
|
0011| a corrected rate of contribution, the employer shall have the
|
0012| same rights to review and redetermination as provided in
|
0013| Subsection I of this section.
|
0014| M. Any interest required to be paid on advances to
|
0015| this state's unemployment compensation fund under Title [XII]
|
0016| 12 of the Social Security Act shall be paid in a timely
|
0017| manner as required under Section 1202 of Title [XII] 12 of
|
0018| the Social Security Act and shall not be paid, directly or
|
0019| indirectly, by the state from amounts in the state's
|
0020| unemployment compensation fund.
|
0021| N. Notwithstanding the provisions of this section,
|
0022| the rate in schedule 1 of the table provided in Paragraph (4)
|
0023| of Subsection H of this section shall be applied for one
|
0024| calendar year beginning January 1, 1998."
|
0025| Section 2. Section 51-1-18 NMSA 1978 (being Laws 1936
|
0001| (S.S.), Chapter 1, Section 8, as amended) is amended to read:
|
0002| "51-1-18. PERIOD, ELECTION AND TERMINATION OF EMPLOYER'S
|
0003| COVERAGE.--
|
0004| A. Except as otherwise provided in Subsection C of
|
0005| this section, any employing unit [which] that is or becomes
|
0006| an employer subject to the Unemployment Compensation Law within
|
0007| any calendar year shall be subject to the Unemployment
|
0008| Compensation Law during the whole of such calendar year.
|
0009| B. Except as otherwise provided in Subsection C of
|
0010| this section, an employing unit shall cease to be an employer
|
0011| subject to the Unemployment Compensation Law only as of [the]
|
0012| January 1 of any calendar year if it files with the department,
|
0013| between January 1 and March 15 of the year in which the
|
0014| employing unit desires termination of coverage, a written
|
0015| application for termination of coverage and the secretary
|
0016| finds:
|
0017| (1) that there was no calendar quarter within
|
0018| the preceding calendar year within which such employing unit
|
0019| paid wages for employment amounting to four hundred fifty
|
0020| dollars ($450) or more or as otherwise provided in Paragraphs
|
0021| (6) and (7) of Subsection F of Section 51-1-42 NMSA 1978; and
|
0022| (2) that there were no twenty different weeks
|
0023| within the preceding calendar year, whether or not such weeks
|
0024| were consecutive, within which such employing unit employed an
|
0025| individual in employment subject to the Unemployment
|
0001| Compensation Law. For the purpose of this subsection, the two
|
0002| or more employing units mentioned in Paragraphs (2) and (3) of
|
0003| Subsection E of Section 51-1-42 NMSA 1978 shall be treated as a
|
0004| single employing unit. For like cause or when the total
|
0005| experience history of a predecessor employing unit is
|
0006| transferred pursuant to Section 51-1-11 NMSA 1978 or when, in
|
0007| the opinion of the secretary, it is unlikely that an employing
|
0008| unit will have individuals in employment at any time in the
|
0009| future, termination of coverage may be granted on the
|
0010| secretary's own initiative; provided that due notice is given
|
0011| to the employing unit at its last address of record with the
|
0012| department. The provisions of this subsection shall not apply
|
0013| to any governmental unit.
|
0014| C. An employing unit, not otherwise subject to the
|
0015| Unemployment Compensation Law, [which] that files with the
|
0016| department its written election to become an employer subject
|
0017| hereto for not less than two calendar years shall, with the
|
0018| written approval of such election by the secretary, become an
|
0019| employer subject hereto to the same extent as all other
|
0020| employers, as of the date stated in such approval, and shall
|
0021| cease to be subject hereto as of January 1 of any calendar year
|
0022| subsequent to such two calendar years only if, between the
|
0023| dates of January 1 and March 15 of the year in which the
|
0024| employing unit desires termination of coverage, it has filed
|
0025| with the department a written notice to that effect or the
|
0001| secretary, on his own initiative, has given notice of
|
0002| termination of such coverage.
|
0003| D. Any employing unit for which services that do not
|
0004| constitute employment, as defined in the Unemployment
|
0005| Compensation Law, are performed may file with the department a
|
0006| written election that all such services performed by
|
0007| individuals in its employ in one or more distinct
|
0008| establishments or places of business shall be deemed to con-
|
0009|
|
0010| stitute employment for all the purposes of the Unemployment
|
0011| Compensation Law for not less than two calendar years. Upon
|
0012| the written approval of such election by the secretary, such
|
0013| services shall be deemed to constitute employment subject to
|
0014| the Unemployment Compensation Law after the date stated in such
|
0015| approval. Such services shall cease to be deemed employment
|
0016| subject hereto as of January 1 of any calendar year subsequent
|
0017| to such two calendar years only if, between January 1 and March
|
0018| 15 of the year in which the employing unit desires termination
|
0019| of coverage, it has filed with the department a written notice
|
0020| to that effect, or the secretary, on his own initiative, has
|
0021| given notice of termination of such coverage.
|
0022| E. The secretary may terminate the election of an
|
0023| employer or employing unit made pursuant to Subsection C or D
|
0024| of this section at any time the secretary determines that the
|
0025| employer or employing unit is not abiding by all the
|
0001| requirements of the Unemployment Compensation Law and the
|
0002| regulations issued pursuant thereto, or if the employer or
|
0003| employing unit that has made an election for coverage becomes
|
0004| delinquent in the payment of its contributions or payment in
|
0005| lieu of contributions, interest or penalties.
|
0006| [E.] F. The secretary, on his own initiative or
|
0007| upon written notification from an employer, may suspend such
|
0008| employer's obligation for filing a quarterly wage and
|
0009| contribution report as provided in the Unemployment
|
0010| Compensation Law or any regulation issued pursuant thereto in
|
0011| any case where the employer has ceased to and does not in the
|
0012| immediate future expect to have individuals in employment; pro-
|
0013|
|
0014| vided that this subsection shall not apply [nor shall it]
|
0015| or be a bar to the collection of contributions, interest and
|
0016| penalties if, in fact, it is determined that the employer had
|
0017| an individual in employment subject to the Unemployment
|
0018| Compensation Law during the period covered by the suspension."
|
0019| Section 3. Section 51-1-37.1 NMSA 1978 (being Laws 1982,
|
0020| Chapter 41, Section 4, as amended) is amended to read:
|
0021| "5l-l-37.l. CHILD SUPPORT OBLIGATIONS.--
|
0022| A. [An individual filing a claim to establish a
|
0023| benefit year for unemployment compensation shall, at the time
|
0024| of filing the claim, disclose whether or not the individual
|
0025| owes child support obligations. If the individual is eligible
|
0001| for unemployment compensation benefits and owes child support
|
0002| obligations, the employment security department shall notify
|
0003| the human services department of the name of the applicant and
|
0004| the amount of benefits for which the claimant is eligible.]
|
0005| The division shall notify the human services department of the
|
0006| name of any individual who files a new claim for unemployment
|
0007| compensation and who is determined to be eligible for
|
0008| benefits.
|
0009| B. The [employment security department] division
|
0010| shall deduct and withhold from any unemployment compensation
|
0011| otherwise payable to an individual who owes child support
|
0012| obligations:
|
0013| (l) the amount specified by the individual to be
|
0014| deducted and withheld, if an amount is not specified under
|
0015| Paragraph (2) or (3) of this subsection;
|
0016| (2) the amount specified in an agreement between
|
0017| the individual and the child support enforcement bureau of the
|
0018| human services department, pursuant to Section 454(20)(B)(i) of
|
0019| the Social Security Act, a copy of which has been provided to
|
0020| the [employment security department] division by the child
|
0021| support enforcement bureau; or
|
0022| (3) any amount otherwise required to be so
|
0023| deducted and withheld from such unemployment compensation
|
0024| pursuant to a writ of garnishment or other legal process for
|
0025| enforcement of judgments issued by any court of competent
|
0001| jurisdiction in any state, territory or possession of the
|
0002| United States or any foreign country with which the United
|
0003| States has an agreement to honor such process directed to the
|
0004| department for the purpose of enforcing an individual's
|
0005| obligation to provide child support.
|
0006| C. Any amount withheld from the benefits due a
|
0007| claimant shall be considered as payment of unemployment
|
0008| compensation benefits to the claimant and paid by the
|
0009| individual in satisfaction of his child support obligations.
|
0010| D. The amount of child support obligations withheld
|
0011| by the [employment security department] division pursuant
|
0012| to this section shall be paid to the human services department.
|
0013| E. "Unemployment compensation benefits" means
|
0014| compensation payable under the Unemployment Compensation Law
|
0015| and any compensation payable by or through the [employment
|
0016| security department] division pursuant to an agreement under
|
0017| any federal law providing for compensation, assistance or
|
0018| allowance with respect to unemployment.
|
0019| F. "Child support obligations" includes only
|
0020| obligations [which] that are being enforced pursuant to a
|
0021| plan described in Section 454 of the Social Security Act
|
0022| [which] that has been approved by the United States
|
0023| secretary of health and human services under Part D of Title
|
0024| [IV] 4 of the Social Security Act.
|
0025| G. The human services department shall reimburse the
|
0001| [employment security department] division for the
|
0002| administrative costs incurred by [the employment security
|
0003| department which] it that are attributable to the child sup-
|
0004|
|
0005| port obligations being enforced by the human services
|
0006| department. If the human services department and the
|
0007| [employment security department] division fail to agree on
|
0008| the amount of such administrative costs, the state budget
|
0009| division of the department of finance and administration shall
|
0010| prescribe the amount of administrative costs to be reimbursed."
|
0011| Section 4. Section 51-1-42 NMSA 1978 (being Laws 1936
|
0012| (S.S.), Chapter 1, Section 19, as amended) is amended to read:
|
0013| "51-1-42. DEFINITIONS.--As used in the Unemployment
|
0014| Compensation Law:
|
0015| A. "base period" means the first four of the last
|
0016| five completed calendar quarters immediately preceding the
|
0017| first day of an individual's benefit year;
|
0018| B. "benefits" means the cash unemployment
|
0019| compensation payments payable to an eligible individual
|
0020| pursuant to Section 51-1-4 NMSA 1978 with respect to his weeks
|
0021| of unemployment;
|
0022| C. "contributions" means the money payments required
|
0023| by Section 51-1-9 NMSA 1978 to be made into the [unemployment
|
0024| compensation] fund by an employer on account of having
|
0025| individuals performing services for him;
|
0001| D. "employing unit" means any individual or type of
|
0002| organization, including any partnership, association,
|
0003| cooperative, trust, estate, joint-stock company, agricultural
|
0004| enterprise, insurance company or corporation, whether domestic
|
0005| or foreign, or the receiver, trustee in bankruptcy, trustee or
|
0006| successor thereof, household, fraternity or club, the legal
|
0007| representative of a deceased person or any state or local
|
0008| government entity to the extent required by law to be covered
|
0009| as an employer, [which] that has in its employ one or more
|
0010| individuals performing services for it within this state. All
|
0011| individuals performing services for any employing unit
|
0012| [which] that maintains two or more separate establishments
|
0013| within this state shall be deemed to be employed by a single
|
0014| employing unit for all the purposes of the Unemployment
|
0015| Compensation Law. Individuals performing services for
|
0016| contractors, subcontractors or agents [which] that are
|
0017| performing work or services for an employing unit, as described
|
0018| in this subsection, [which] that are within the scope of
|
0019| the employing unit's usual trade, occupation, profession or
|
0020| business shall be deemed to be in the employ of the employing
|
0021| unit for all purposes of the Unemployment Compensation Law
|
0022| unless such contractor, subcontractor or agent is itself an
|
0023| employer within the provision of Subsection E of this section;
|
0024| E. "employer" includes:
|
0025| (1) any employing unit [which] that:
|
0001| (a) unless otherwise provided in this
|
0002| section, paid for service in employment as defined in
|
0003| Subsection F of this section wages of four hundred fifty
|
0004| dollars ($450) or more in any calendar quarter in either the
|
0005| current or preceding calendar year or had in employment, as
|
0006| defined in Subsection F of this section, for some portion of a
|
0007| day in each of twenty different calendar weeks during either
|
0008| the current or the preceding calendar year, and irrespective of
|
0009| whether the same individual was in employment in each such day,
|
0010| at least one individual;
|
0011| (b) for the purposes of Subparagraph (a) of
|
0012| this paragraph, if any week includes both December 31 and
|
0013| January 1, the days of that week up to January 1 shall be
|
0014| deemed one calendar week and the days beginning January 1,
|
0015| another such week; and
|
0016| (c) for purposes of defining an "employer"
|
0017| under Subparagraph (a) of this paragraph, the wages or
|
0018| remuneration paid to individuals performing services in
|
0019| employment in agricultural labor or domestic services as
|
0020| provided in Paragraphs (6) and (7) of Subsection F of this
|
0021| section shall not be taken into account; except that any
|
0022| employing unit determined to be an employer of agricultural
|
0023| labor under Paragraph (6) of Subsection F of this section shall
|
0024| be an employer under Subparagraph (a) of this paragraph so long
|
0025| as the employing unit is paying wages or remuneration for
|
0001| services other than agricultural services;
|
0002| (2) any individual or type of organization that
|
0003| acquired the trade or business or substantially all of the
|
0004| assets thereof, of an employing unit [which] that at the
|
0005| time of such acquisition was an employer subject to the
|
0006| Unemployment Compensation Law; provided that where such an
|
0007| acquisition takes place, the secretary may postpone activating
|
0008| the separate account pursuant to Subsection A of Section
|
0009| 51-1-11 NMSA 1978 until such time as the successor employer has
|
0010| employment as defined in Subsection F of this section;
|
0011| (3) any employing unit [which] that acquired
|
0012| all or part of the organization, trade, business or assets of
|
0013| another employing unit and [which] that, if treated as a
|
0014| single unit with such other employing unit or part thereof,
|
0015| would be an employer under Paragraph (1) of this subsection;
|
0016| (4) any employing unit not an employer by reason
|
0017| of any other paragraph of this subsection:
|
0018| (a) for which, within either the current or
|
0019| preceding calendar year, service is or was performed with
|
0020| respect to which such employing unit is liable for any federal
|
0021| tax against which credit may be taken for contributions
|
0022| required to be paid into a state unemployment fund, or
|
0023| (b) [which] that, as a condition for
|
0024| approval of the Unemployment Compensation Law for full tax
|
0025| credit against the tax imposed by the Federal Unemployment Tax
|
0001| Act, is required, pursuant to such act, to be an "employer"
|
0002| under the Unemployment Compensation Law;
|
0003| (5) any employing unit [which] that, having
|
0004| become an employer under Paragraph (1), (2), (3) or (4) of this
|
0005| subsection, has not, under Section 51-1-18 NMSA 1978, ceased to
|
0006| be an employer subject to the Unemployment Compensation Law;
|
0007| (6) for the effective period of its election
|
0008| pursuant to Section 51-1-18 NMSA 1978, any other employing unit
|
0009| [which] that has elected to become fully subject to the
|
0010| Unemployment Compensation Law; and
|
0011| (7) any employing unit for which any services
|
0012| performed in its employ are deemed to be performed in this
|
0013| state pursuant to an election under an arrangement entered into
|
0014| in accordance with Subsection A of Section 51-1-50 NMSA 1978;
|
0015| F. "employment" means:
|
0016| (1) any service, including service in interstate
|
0017| commerce, performed for wages or under any contract of hire,
|
0018| written or oral, express or implied;
|
0019| (2) and includes an individual's entire service,
|
0020| performed within or both within and without this state if:
|
0021| (a) the service is primarily localized in
|
0022| this state with services performed outside the state being only
|
0023| incidental thereto; or
|
0024| (b) the service is not localized in any
|
0025| state but some of the service is performed in this state and:
|
0001| 1) the base of operations or, if there is no base of
|
0002| operations, [then] the place from which such service is
|
0003| directed or controlled, is in this state; or 2) the base of
|
0004| operations or place from which such service is directed or
|
0005| controlled is not in any state in which some part of the
|
0006| service is performed but the individual's residence is in this
|
0007| state;
|
0008| (3) services performed within this state but not
|
0009| covered under Paragraph (2) of this subsection if contributions
|
0010| or payments in lieu of contributions are not required and paid
|
0011| with respect to such services under an unemployment
|
0012| compensation law of any other state, the federal government or
|
0013| Canada;
|
0014| (4) services covered by an election pursuant to
|
0015| Section 51-1-18 NMSA 1978 and services covered by an election
|
0016| duly approved by the secretary in accordance with an
|
0017| arrangement pursuant to Paragraph (1) of Subsection A of
|
0018| Section 51-1-50 NMSA 1978 shall be deemed to be employment
|
0019| during the effective period of such election;
|
0020| (5) services performed by an individual for an
|
0021| employer for wages or other remuneration unless and until it is
|
0022| established by a preponderance of evidence that:
|
0023| (a) such individual has been and will
|
0024| continue to be free from control or direction over the
|
0025| performance of such services both under his contract of service
|
0001| and in fact;
|
0002| (b) such service is either outside the usual
|
0003| course of business for which such service is performed or that
|
0004| such service is performed outside of all the places of business
|
0005| of the enterprise for which such service is performed; and
|
0006| (c) such individual is customarily engaged
|
0007| in an independently established trade, occupation, profession
|
0008| or business of the same nature as that involved in the contract
|
0009| of service;
|
0010| (6) service performed after December 31, 1977 by
|
0011| an individual in agricultural labor as defined in Subsection Q
|
0012| of this section if:
|
0013| (a) such service is performed for an
|
0014| employing unit [which] that: 1) paid remuneration in cash
|
0015| of twenty thousand dollars ($20,000) or more to individuals in
|
0016| such employment during any calendar quarter in either the
|
0017| current or the preceding calendar year; or 2) employed in
|
0018| agricultural labor ten or more individuals for some portion of
|
0019| a day in each of twenty different calendar weeks in either the
|
0020| current or preceding calendar year, whether or not such weeks
|
0021| were consecutive, and regardless of whether such individuals
|
0022| were employed at the same time;
|
0023| (b) such service is not performed before
|
0024| January 1, 1980 by an individual who is an alien admitted to
|
0025| the United States to perform service in agricultural labor
|
0001| pursuant to Sections 214(c) and 101(15)(H) of the Immigration
|
0002| and Nationality Act; and
|
0003| (c) for purposes of this paragraph, any
|
0004| individual who is a member of a crew furnished by a crew leader
|
0005| to perform service in agricultural labor for a farm operator or
|
0006| other person shall be treated as an employee of such crew
|
0007| leader: 1) if such crew leader meets the requirements of a crew
|
0008| leader as defined in Subsection L of this section; or 2)
|
0009| substantially all the members of such crew operate or maintain
|
0010| mechanized agricultural equipment [which] that is provided
|
0011| by the crew leader; and 3) the individuals performing such
|
0012| services are not, by written agreement or in fact, within the
|
0013| meaning of Paragraph (5) of this subsection, performing
|
0014| services in employment for the farm operator or other person;
|
0015| (7) service performed after December 31, 1977 by
|
0016| an individual in domestic service in a private home, local
|
0017| college club or local chapter of a college fraternity or
|
0018| sorority for a person or organization that paid cash
|
0019| remuneration of one thousand dollars ($1,000) in any calendar
|
0020| quarter in the current or preceding calendar year to
|
0021| individuals performing such services;
|
0022| (8) service performed after December 31, 1971 by
|
0023| an individual in the employ of a religious, charitable,
|
0024| educational or other organization but only if the following
|
0025| conditions are met:
|
0001| (a) the service is excluded from
|
0002| "employment" as defined in the Federal Unemployment Tax Act
|
0003| solely by reason of Section 3306(c)(8) of that act; and
|
0004| (b) the organization meets the requirements
|
0005| of "employer" as provided in Subparagraph (a) of Paragraph (1)
|
0006| of Subsection E of this section;
|
0007| (9) service of an individual who is a citizen of
|
0008| the United States, performed outside the United States, except
|
0009| in Canada, after December 31, 1971 in the employ of an American
|
0010| employer (other than service [which] that is deemed
|
0011| "employment" under the provisions of Paragraph (2) of this
|
0012| subsection or the parallel provisions of another state's law),
|
0013| if:
|
0014| (a) the employer's principal place of
|
0015| business in the United States is located in this state;
|
0016| (b) the employer has no place of business in
|
0017| the United States, but: 1) the employer is an individual who is
|
0018| a resident of this state; 2) the employer is a corporation
|
0019| [which] that is organized under the laws of this state; or
|
0020| 3) the employer is a partnership or a trust and the number of
|
0021| the partners or trustees who are residents of this state is
|
0022| greater than the number who are residents of any one other
|
0023| state; or
|
0024| (c) none of the criteria of Subparagraphs
|
0025| (a) and (b) of this paragraph are met, but the employer has
|
0001| elected coverage in this state or, the employer having failed
|
0002| to elect coverage in any state, the individual has filed a
|
0003| claim for benefits, based on such service, under the law of
|
0004| this state.
|
0005| "American employer" for purposes of this paragraph [(9)
|
0006| of this subsection] means a person who is: 1) an individual
|
0007| who is a resident of the United States; 2) a partnership if
|
0008| two-thirds or more of the partners are residents of the United
|
0009| States; 3) a trust if all of the trustees are residents of the
|
0010| United States; or 4) a corporation organized under the laws of
|
0011| the United States or of any state. For the purposes of this
|
0012| paragraph [(9) of this subsection], "United States" includes
|
0013| the United States, the District of Columbia, the commonwealth
|
0014| of Puerto Rico and the Virgin Islands;
|
0015| (10) notwithstanding any other provisions of
|
0016| this subsection, service with respect to which a tax is
|
0017| required to be paid under any federal law imposing a tax
|
0018| against which credit may be taken for contributions required to
|
0019| be paid into a state unemployment fund or which as a condition
|
0020| for full tax credit against the tax imposed by the Federal
|
0021| Unemployment Tax Act is required to be covered under the
|
0022| Unemployment Compensation Law;
|
0023| (11) "employment" shall not include:
|
0024| (a) service performed in the employ of: 1) a
|
0025| church or convention or association of churches; or 2) an
|
0001| organization [which] that is operated primarily for
|
0002| religious purposes and [which] that is operated,
|
0003| supervised, controlled or principally supported by a church or
|
0004| convention or association of churches;
|
0005| (b) service performed by a duly ordained,
|
0006| commissioned or licensed minister of a church in the exercise
|
0007| of his ministry or by a member of a religious order in the
|
0008| exercise of duties required by such order;
|
0009| (c) service performed by an individual in
|
0010| the employ of his son, daughter or spouse, and service
|
0011| performed by a child under the age of majority in the employ of
|
0012| his father or mother;
|
0013| (d) service performed in the employ of the
|
0014| United States government or an instrumentality of the United
|
0015| States immune under the constitution of the United States from
|
0016| the contributions imposed by the Unemployment Compensation Law
|
0017| except that to the extent that the congress of the United
|
0018| States shall permit states to require any instrumentalities of
|
0019| the United States to make payments into an unemployment fund
|
0020| under a state unemployment compensation act, all of the
|
0021| provisions of the Unemployment Compensation Law shall be
|
0022| applicable to such instrumentalities, and to service performed
|
0023| for such instrumentalities in the same manner, to the same
|
0024| extent and on the same terms as to all other employers,
|
0025| employing units, individuals and services; provided, that if
|
0001| this state shall not be certified for any year by the secretary
|
0002| of labor of the United States under Section 3304 of the federal
|
0003| Internal Revenue Code (26 U.S.C. Section 3304), the payments
|
0004| required of such instrumentalities with respect to such year
|
0005| shall be refunded by the department from the fund in the same
|
0006| manner and within the same period as is provided in Subsection
|
0007| D of Section 51-1-36 NMSA 1978 with respect to contributions
|
0008| erroneously collected;
|
0009| (e) service performed in a facility
|
0010| conducted for the purpose of carrying out a program of
|
0011| rehabilitation for individuals whose earning capacity is
|
0012| impaired by age or physical or mental deficiency or injury or
|
0013| providing remunerative work for individuals who because of
|
0014| their impaired physical or mental capacity cannot be readily
|
0015| absorbed in the competitive labor market, by an individual
|
0016| receiving such rehabilitation or remunerative work;
|
0017| (f) service with respect to which
|
0018| unemployment compensation is payable under an unemployment
|
0019| compensation system established by an act of congress;
|
0020| (g) service performed in the employ of a
|
0021| foreign government, including service as a consular or other
|
0022| officer or employee or a nondiplomatic representative;
|
0023| (h) service performed by an individual for a
|
0024| person as an insurance agent or as an insurance solicitor, if
|
0025| all such service performed by such individual for such person
|
0001| is performed for remuneration solely by way of commission;
|
0002| (i) service performed by an individual under
|
0003| the age of eighteen in the delivery or distribution of
|
0004| newspapers or shopping news, not including delivery or
|
0005| distribution to any point for subsequent delivery or
|
0006| distribution;
|
0007| (j) service covered by an election duly
|
0008| approved by the agency charged with the administration of any
|
0009| other state or federal unemployment compensation law, in
|
0010| accordance with an arrangement pursuant to Paragraph (1) of
|
0011| Subsection A of Section 51-1-50 NMSA 1978 during the effective
|
0012| period of such election;
|
0013| (k) service performed, as part of an
|
0014| unemployment work-relief or work-training program assisted or
|
0015| financed in whole or part by any federal agency or an agency of
|
0016| a state or political subdivision thereof, by an individual
|
0017| receiving such work relief or work training;
|
0018| (1) service performed by an individual who
|
0019| is enrolled at a nonprofit or public educational institution
|
0020| [which] that normally maintains a regular faculty and
|
0021| curriculum and normally has a regularly organized body of
|
0022| students in attendance at the place where its educational
|
0023| activities are carried on as a student in a full-time program,
|
0024| taken for credit at such institution, [which] that combines
|
0025| academic instruction with work experience, if the service is an
|
0001| integral part of such program, and the institution has so
|
0002| certified to the employer, except that this subparagraph shall
|
0003| not apply to service performed in a program established for or
|
0004| on behalf of an employer or group of employers;
|
0005| (m) service performed in the employ of a
|
0006| hospital, if the service is performed by a patient of the
|
0007| hospital, or services performed by an inmate of a custodial or
|
0008| penal institution for a governmental entity or nonprofit
|
0009| organization;
|
0010| (n) service performed by real estate
|
0011| salesmen for others when the services are performed for
|
0012| remuneration solely by way of commission;
|
0013| (o) service performed in the employ of a
|
0014| school, college or university if such service is performed by a
|
0015| student who is enrolled and is regularly attending classes at
|
0016| such school, college or university;
|
0017| (p) service performed by an individual for a
|
0018| fixed or contract fee officiating at a sporting event [which]
|
0019| that is conducted by or under the auspices of a nonprofit or
|
0020| governmental entity if that person is not otherwise an employee
|
0021| of the entity conducting the sporting event; [or]
|
0022| (q) service performed for a private for-
|
0023| profit person or entity by an individual as a landman if
|
0024| substantially all remuneration paid in cash or otherwise for
|
0025| the performance of the services is directly related to the
|
0001| completion by the individual of the specific tasks contracted
|
0002| for rather than to the number of hours worked by the
|
0003| individual. For the purposes of this subparagraph, "landman"
|
0004| means a land professional who has been engaged primarily in: 1)
|
0005| negotiating for the acquisition or divestiture of mineral
|
0006| rights; 2) negotiating business agreements that provide for
|
0007| the exploration for or development of minerals; 3) determining
|
0008| ownership of minerals through the research of public and
|
0009| private records; and 4) reviewing the status of title, curing
|
0010| title defects and otherwise reducing title risk associated with
|
0011| ownership of minerals; managing rights or obligations derived
|
0012| from ownership of interests and minerals; or utilizing or
|
0013| pooling of interest in minerals; [and]
|
0014| (r) service performed after December 31,
|
0015| 1997 by an officer of a corporation if such officer is a
|
0016| majority stockholder and the officer shall not be considered an
|
0017| employee of the corporation unless such services are subject to
|
0018| a tax to be paid under any federal law imposing a tax against
|
0019| which credit may be taken for contributions required to be paid
|
0020| into a state unemployment fund or such services are required to
|
0021| be covered under the Unemployment Compensation Law as a
|
0022| condition to receipt of full tax credit against the tax imposed
|
0023| by the federal Unemployment Tax Act;
|
0024| (s) service performed by a nonresident
|
0025| alien individual for the period he is temporarily present in
|
0001| the United States as a nonimmigrant under Subparagraph (F), (J)
|
0002| or (M) of Section 101(a)(15) of the Immigration and Nationality
|
0003| Act and that is performed to carry out the purpose specified in
|
0004| those subparagraphs, as the case may be;
|
0005| (t) service performed as a student nurse in
|
0006| the employ of a hospital or a nurses' training school by an
|
0007| individual who is enrolled and is regularly attending classes
|
0008| in a nurses' training school chartered or approved pursuant to
|
0009| state law; and service performed as an intern in the employ of
|
0010| a hospital by an individual who has completed a four-year
|
0011| course in a medical school chartered or approved pursuant to
|
0012| state law; or
|
0013| (u) service performed by an individual in
|
0014| the sale of newspapers to ultimate consumers if such
|
0015| individuals are "direct sellers" as defined by Section 3508 of
|
0016| the Internal Revenue Code; and
|
0017| (12) for the purposes of this subsection, if the
|
0018| services performed during one-half or more of any pay period by
|
0019| an individual for the person employing him constitute
|
0020| employment, all the services of such individual for such period
|
0021| shall be deemed to be employment but, if the services performed
|
0022| during more than one-half of any such pay period by an
|
0023| individual for the person employing him do not constitute
|
0024| employment, then none of the services of such individual for
|
0025| such period shall be deemed to be employment. As used in this
|
0001| paragraph, the term "pay period" means a period, of not more
|
0002| than thirty-one consecutive days, for which a payment of
|
0003| remuneration is ordinarily made to the individual by the person
|
0004| employing him. This paragraph shall not be applicable with
|
0005| respect to services performed in a pay period by an individual
|
0006| for the person employing him where any of such service is
|
0007| excepted by Subparagraph (f) of Paragraph (11) of this
|
0008| subsection;
|
0009| G. "employment office" means a free public employment
|
0010| office, or branch thereof, operated by this state or maintained
|
0011| as a part of a state-controlled system of public employment
|
0012| offices;
|
0013| H. "fund" means the unemployment compensation fund
|
0014| established by the Unemployment Compensation Law to which all
|
0015| contributions and payments in lieu of contributions required
|
0016| under the Unemployment Compensation Law and from which all
|
0017| benefits provided under the Unemployment Compensation Law shall
|
0018| be paid;
|
0019| I. "unemployment" means, with respect to an
|
0020| individual, any week during which he performs no services and
|
0021| with respect to which no wages are payable to him and during
|
0022| which he is not engaged in self-employment or receives an award
|
0023| of back pay for loss of employment. The secretary shall
|
0024| prescribe by regulation what constitutes part-time and
|
0025| intermittent employment, partial employment and the conditions
|
0001| under which individuals engaged in such employment are eligible
|
0002| for partial unemployment benefits;
|
0003| J. "state", when used in reference to any state other
|
0004| than New Mexico, includes, in addition to the states of the
|
0005| United States, the District of Columbia, the commonwealth of
|
0006| Puerto Rico and the Virgin Islands;
|
0007| K. "unemployment compensation administration fund"
|
0008| means the fund established by Subsection A of Section 51-1-34
|
0009| NMSA 1978 from which administrative expenses under the
|
0010| Unemployment Compensation Law shall be paid. "Employment
|
0011| security department fund" means the fund established by
|
0012| Subsection B of Section 51-1-34 NMSA 1978 from which certain
|
0013| administrative expenses under the Unemployment Compensation Law
|
0014| shall be paid;
|
0015| L. "crew leader" means a person who:
|
0016| (1) holds a valid certificate of registration as
|
0017| a crew leader or farm labor contractor under the Migrant and
|
0018| Seasonal Agricultural Worker Protection Act;
|
0019| (2) furnishes individuals to perform services in
|
0020| agricultural labor for any other person;
|
0021| (3) pays, either on his own behalf or on behalf
|
0022| of such other person, the individuals so furnished by him for
|
0023| service in agricultural labor; and
|
0024| (4) has not entered into a written agreement
|
0025| with the other person for whom he furnishes individuals in
|
0001| agricultural labor that such individuals will be the employees
|
0002| of the other person;
|
0003| M. "week" means such period of seven consecutive
|
0004| days, as the secretary may by regulation prescribe. The
|
0005| secretary may by regulation prescribe that a week shall be
|
0006| deemed to be "in", "within" or "during" that benefit year
|
0007| [which] that includes the greater part of such week;
|
0008| N. "calendar quarter" means the period of three
|
0009| consecutive calendar months ending on March 31, June 30,
|
0010| September 30 or December 31;
|
0011| O. "insured work" means services performed for
|
0012| employers who are covered under the Unemployment Compensation
|
0013| Law;
|
0014| P. "benefit year" with respect to any individual
|
0015| means the one-year period beginning with the first day of the
|
0016| first week of unemployment with respect to which the individual
|
0017| first files a claim for benefits in accordance with Subsection
|
0018| A of Section 51-1-8 NMSA 1978 and thereafter the one-year
|
0019| period beginning with the first day of the first week of
|
0020| unemployment with respect to which the individual next files
|
0021| such a claim for benefits after the termination of his last
|
0022| preceding benefit year; provided that at the time of filing
|
0023| such a claim the individual has been paid the wages for insured
|
0024| work required under Paragraph (5) of Subsection A of Section
|
0025| 51-1-5 NMSA 1978;
|
0001| Q. "agricultural labor" includes all services
|
0002| performed:
|
0003| (1) on a farm, in the employ of any person, in
|
0004| connection with cultivating the soil or in connection with
|
0005| raising or harvesting any agricultural or horticultural
|
0006| commodity, including the raising, shearing, feeding, caring
|
0007| for, training and management of livestock, bees, poultry and
|
0008| fur-bearing animals and wildlife;
|
0009| (2) in the employ of the owner or tenant or
|
0010| other operator of a farm, in connection with the operation,
|
0011| management, conservation or maintenance of such farm and its
|
0012| tools and equipment, if the major part of such service is
|
0013| performed on a farm;
|
0014| (3) in connection with the operation or
|
0015| maintenance of ditches, canals, reservoirs or waterways used
|
0016| exclusively for supplying and storing water for farming
|
0017| purposes when such ditches, canals, reservoirs or waterways are
|
0018| owned and operated by the farmers using the water stored or
|
0019| carried therein; and
|
0020| (4) in handling, planting, drying, packing,
|
0021| packaging, processing, freezing, grading, storing or delivery
|
0022| to storage or to market or to a carrier for transportation to
|
0023| market any agricultural or horticultural commodity but only if
|
0024| such service is performed as an incident to ordinary farming
|
0025| operations. The provisions of this paragraph shall not be
|
0001| deemed to be applicable with respect to service performed in
|
0002| connection with commercial canning or commercial freezing or in
|
0003| connection with any agricultural or horticultural commodity
|
0004| after its delivery to a terminal market for distribution for
|
0005| consumption.
|
0006| As used in this subsection, the term "farm" includes
|
0007| stock, dairy, poultry, fruit, fur-bearing animal and truck
|
0008| farms, plantations, ranches, nurseries, greenhouses, ranges and
|
0009| orchards;
|
0010| R. "payments in lieu of contributions" means the
|
0011| money payments made into the fund by an employer pursuant to
|
0012| the provisions of Subsection A of Section 51-1-13 NMSA 1978;
|
0013| S. "department" means the labor department; and
|
0014| T. "wages" means all remuneration for services,
|
0015| including commissions and bonuses and the cash value of all
|
0016| remuneration in any medium other than cash. The reasonable
|
0017| cash value of remuneration in any medium other than cash shall
|
0018| be established and determined in accordance with regulations
|
0019| prescribed by the secretary; provided that the term "wages"
|
0020| shall not include:
|
0021| (1) subsequent to December 31, 1977, that part
|
0022| of the remuneration in excess of the base wage as determined by
|
0023| the secretary for each calendar year. The base wage upon which
|
0024| contribution shall be paid during any calendar year shall be
|
0025| [sixty-five] sixty percent of the state's average annual
|
0001| earnings computed by the department by dividing total wages
|
0002| reported to the department by contributing employers for the
|
0003| second preceding calendar year before the calendar year the
|
0004| computed base wage becomes effective by the average annual
|
0005| employment reported by contributing employers for the same
|
0006| period rounded to the next higher multiple of one hundred
|
0007| dollars ($100); provided that the base wage so computed for any
|
0008| calendar year shall not be less than seven thousand dollars
|
0009| ($7,000). Wages paid by an employer to an individual in his
|
0010| employ during any calendar year in excess of the base wage in
|
0011| effect for that calendar year shall be reported to the
|
0012| department but shall be exempt from the payment of
|
0013| contributions unless such wages paid in excess of the base wage
|
0014| become subject to tax under a federal law imposing a tax
|
0015| against which credit may be taken for contributions required to
|
0016| be paid into a state unemployment fund;
|
0017| (2) the amount of any payment with respect to
|
0018| services performed after June 30, 1941 to or on behalf of an
|
0019| individual in its employ under a plan or system established by
|
0020| an employing unit [which] that makes provision for
|
0021| individuals in its employ generally or for a class or classes
|
0022| of such individuals, including any amount paid by an employing
|
0023| unit for insurance or annuities, or into a fund, to provide for
|
0024| any such payment, on account of:
|
0025| (a) retirement if such payments are made by
|
0001| an employer to or on behalf of any employee under a simplified
|
0002| employee pension plan that provides for payments by an employer
|
0003| in addition to the salary or other remuneration normally
|
0004| payable to such employee or class of such employees and does
|
0005| not include any payments [which] that represent deferred
|
0006| compensation or other reduction of an employee's normal taxable
|
0007| wages or remuneration or any payments made to a third party on
|
0008| behalf of an employee as part of an agreement of deferred
|
0009| remuneration;
|
0010| (b) sickness or accident disability if such
|
0011| payments are received under a workers' compensation or
|
0012| occupational disease disablement law;
|
0013| (c) medical and hospitalization expenses in
|
0014| connection with sickness or accident disability; or
|
0015| (d) death;
|
0016| provided the individual in its employ has not the option to
|
0017| receive, instead of provision for such death benefit, any part
|
0018| of such payment, or, if such death benefit is insured, any part
|
0019| of the premiums or contributions to premiums paid by his
|
0020| employing unit and has not the right under the provisions of
|
0021| the plan or system or policy of insurance providing for such
|
0022| death benefit to assign such benefit, or to receive a cash
|
0023| consideration in lieu of such benefit either upon his
|
0024| withdrawal from the plan or system providing for such benefit
|
0025| or upon termination of such plan or system or policy of
|
0001| insurance or of his service with such employing unit;
|
0002| (3) remuneration for agricultural labor paid in
|
0003| any medium other than cash;
|
0004| (4) any payment made to, or on behalf of, an
|
0005| employee or an employee's beneficiary under a cafeteria plan
|
0006| within the meaning of Section 125 of the federal Internal
|
0007| Revenue Code of 1986;
|
0008| (5) any payment made, or benefit furnished to or
|
0009| for the benefit of an employee if at the time of such payment
|
0010| or such furnishing it is reasonable to believe that the
|
0011| employee will be able to exclude such payment or benefit from
|
0012| income under Section 129 of the federal Internal Revenue Code
|
0013| of 1986; [or]
|
0014| (6) any payment made by an employer to a
|
0015| survivor or the estate of a former employee after the calendar
|
0016| year in which such employee died; [The provisions of this
|
0017| section shall become effective July 1, 1993.]
|
0018| (7) any payment made to, or on behalf of, an
|
0019| employee or his beneficiary under an arrangement to which
|
0020| Section 408(p) of the federal Internal Revenue Code of 1986
|
0021| applies, other than any elective contributions under Paragraph
|
0022| (2)(A)(i) of that section;
|
0023| (8) any payment made to or for the benefit of an
|
0024| employee if at the time of such payment it is reasonable to
|
0025| believe that the employee will be able to exclude such payment
|
0001| from income under Section 106 of the federal Internal Revenue
|
0002| Code of 1986; or
|
0003| (9) the value of any meals or lodging furnished
|
0004| by or on behalf of the employer if at the time such benefit is
|
0005| provided it is reasonable to believe that the employee will be
|
0006| able to exclude such items from income under Section 119 of the
|
0007| federal Internal Revenue Code of 1986."
|
0008| Section 5. A new section of the Unemployment Compensation
|
0009| Law is enacted to read:
|
0010| "[NEW MATERIAL] FOOD STAMP OVERISSUANCES.--
|
0011| A. The division shall notify the human services
|
0012| department of the name of any individual who files a new claim
|
0013| for unemployment compensation and who is determined to be
|
0014| eligible for benefits. This information provided by the
|
0015| division shall be used by the human services department to
|
0016| determine whether or not any eligible individual owes an
|
0017| uncollected overissuance, as defined in Section 13(c)(1) of the
|
0018| federal Food Stamp Act of 1977, of food stamp coupons.
|
0019| B. The division shall deduct and withhold from any
|
0020| unemployment compensation payable to an individual who owes an
|
0021| uncollected overissuance:
|
0022| (1) the amount specified by the individual to
|
0023| the division to be deducted and withheld under this subsection;
|
0024| (2) the amount, if any, determined pursuant to
|
0025| an agreement submitted to the human services department under
|
0001| Section 13(c)(3)(A) of the federal Food Stamp Act of 1977; or
|
0002| (3) any amount otherwise required to be deducted
|
0003| and withheld from unemployment compensation pursuant to Section
|
0004| 13(c)(3)(B) of the federal Food Stamp Act of 1977.
|
0005| C. Any amount deducted and withheld under this
|
0006| section shall be paid by the division to the human services
|
0007| department.
|
0008| D. Any amount deducted and withheld under Subsection
|
0009| B of this section shall for all purposes be treated as if it
|
0010| were paid to the individual as unemployment compensation and
|
0011| paid by such individual to the human services department as
|
0012| repayment of the individual's uncollected overissuance.
|
0013| E. For purposes of this section, the term
|
0014| "unemployment compensation" means any compensation payable
|
0015| under the Unemployment Compensation Law including amounts
|
0016| payable pursuant to an agreement under any federal law
|
0017| providing for compensation, assistance or allowances with
|
0018| respect to unemployment.
|
0019| F. This section applies only if arrangements have
|
0020| been made for reimbursement by the human services department
|
0021| for the administrative costs incurred by the division under
|
0022| this section [which] that are attributable to the repayment
|
0023| of uncollected overissuances to the human services department."
|
0024| Section 6. EFFECTIVE DATE.--The effective date of the
|
0025| provisions of this act is July 1, 1997.
|
0001| - 48 -
|
0002|
|
0003|
|
0004|
|
0005|
|
0006|
|
0007|
|
0008|
|
0009|
|
0010|
|
0011|
|
0012|
|
0013|
|
0014|
|
0015|
|
0016|
|
0017|
|
0018|
|
0019|
|
0020|
|
0021| State of New Mexico
|
0022| House of Representatives
|
0023|
|
0024| FORTY-THIRD LEGISLATURE
|
0025| FIRST SESSION, 1997
|
0001|
|
0002|
|
0003| February 6, 1997
|
0004|
|
0005|
|
0006| Mr. Speaker:
|
0007|
|
0008| Your BUSINESS AND INDUSTRY COMMITTEE, to whom has
|
0009| been referred
|
0010|
|
0011| HOUSE BILL 328
|
0012|
|
0013| has had it under consideration and reports same with
|
0014| recommendation that it DO PASS, and thence referred to the
|
0015| JUDICIARY COMMITTEE.
|
0016|
|
0017|
|
0018| Respectfully submitted,
|
0019|
|
0020|
|
0021|
|
0022|
|
0023|
|
0024|
|
0025| Fred Luna, Chairman
|
0001|
|
0002|
|
0003| Adopted Not Adopted
|
0004| (Chief Clerk)
|
0005| (Chief Clerk)
|
0006|
|
0007| Date
|
0008|
|
0009| The roll call vote was 7 For 4 Against
|
0010| Yes: 7
|
0011| No: Chavez, Luna, Rodella, J.G. Taylor
|
0012| Excused: Olguin, Varela
|
0013| Absent: None
|
0014|
|
0015|
|
0016| G:\BILLTEXT\BILLW_97\H0328 State of New Mexico
|
0017| House of Representatives
|
0018|
|
0019| FORTY-THIRD LEGISLATURE
|
0020| FIRST SESSION, 1997
|
0021|
|
0022|
|
0023| February 17, 1997
|
0024|
|
0025|
|
0001| Mr. Speaker:
|
0002|
|
0003| Your JUDICIARY COMMITTEE, to whom has been referred
|
0004|
|
0005| HOUSE BILL 328
|
0006|
|
0007| has had it under consideration and reports same with
|
0008| recommendation that it DO PASS, and thence referred to
|
0009| the APPROPRIATIONS AND FINANCE COMMITTEE.
|
0010|
|
0011|
|
0012| Respectfully submitted,
|
0013|
|
0014|
|
0015|
|
0016|
|
0017|
|
0018|
|
0019| Thomas P. Foy, Chairman
|
0020|
|
0021|
|
0022| Adopted Not Adopted
|
0023| (Chief Clerk)
|
0024| (Chief Clerk)
|
0025|
|
0001| Date
|
0002|
|
0003| The roll call vote was 8 For 0 Against
|
0004| Yes: 8
|
0005| Excused: Garcia M.P., Luna, Rios, Sanchez, Stewart
|
0006| Absent: None
|
0007|
|
0008|
|
0009| G:\BILLTEXT\BILLW_97\H0328 State of New Mexico
|
0010| House of Representatives
|
0011|
|
0012| FORTY-THIRD LEGISLATURE
|
0013| FIRST SESSION, 1997
|
0014|
|
0015|
|
0016| February 27, 1997
|
0017|
|
0018|
|
0019| Mr. Speaker:
|
0020|
|
0021| Your APPROPRIATIONS AND FINANCE COMMITTEE, to
|
0022| whom has been referred
|
0023|
|
0024| HOUSE BILL 328
|
0025|
|
0001| has had it under consideration and reports same with
|
0002| recommendation that it DO PASS.
|
0003|
|
0004|
|
0005| Respectfully submitted,
|
0006|
|
0007|
|
0008|
|
0009|
|
0010|
|
0011|
|
0012| Max Coll, Chairman
|
0013|
|
0014|
|
0015| Adopted Not Adopted
|
0016| (Chief Clerk)
|
0017| (Chief Clerk)
|
0018|
|
0019| Date
|
0020|
|
0021| The roll call vote was 15 For 0 Against
|
0022| Yes: 15
|
0023| Excused: Abeyta, Buffett
|
0024| Absent: None
|
0025|
|
0001|
|
0002| G:\BILLTEXT\BILLW_97\H0328 FORTY-THIRD LEGISLATURE
|
0003| FIRST SESSION
|
0004|
|
0005|
|
0006| March 4, 1997
|
0007|
|
0008|
|
0009| HOUSE FLOOR AMENDMENT number ___1___ to HOUSE BILL 328
|
0010|
|
0011| Amendment sponsored by Representative Terry T. Marquardt
|
0012|
|
0013|
|
0014| 1. On page 36, line 21, strike the brackets and line through
|
0015| "and".
|
0016|
|
0017| 2. On page 37, strike lines 7 through 24 in their entirety.
|
0018|
|
0019|
|
0020|
|
0021|
|
0022|
|
0023|
|
0024|
|
0025|
|
0001|
|
0002|
|
0003|
|
0004|
|
0005|
|
0006|
|
0007|
|
0008| ___________________________
|
0009| Terry T. Marquardt
|
0010|
|
0011|
|
0012|
|
0013| Adopted ___________________ Not Adopted ___________________________
|
0014| (Chief Clerk) (Chief Clerk)
|
0015|
|
0016|
|
0017| Date ________________
|
0018|
|
0019|
|
0020| FORTY-THIRD LEGISLATURE
|
0021| FIRST SESSION, 1997
|
0022|
|
0023|
|
0024| March 14, 1997
|
0025|
|
0001| Mr. President:
|
0002|
|
0003| Your PUBLIC AFFAIRS COMMITTEE, to whom has been referred
|
0004|
|
0005| HOUSE BILL 328, as amended
|
0006|
|
0007| has had it under consideration and reports same with recommendation
|
0008| that it DO PASS, and thence referred to the CORPORATIONS &
|
0009| TRANSPORTATION COMMITTEE.
|
0010|
|
0011| Respectfully submitted,
|
0012|
|
0013|
|
0014|
|
0015| __________________________________
|
0016| Shannon Robinson, Chairman
|
0017|
|
0018|
|
0019|
|
0020| Adopted_______________________ Not Adopted_______________________
|
0021| (Chief Clerk) (Chief Clerk)
|
0022|
|
0023|
|
0024| Date ________________________
|
0025|
|
0001|
|
0002| The roll call vote was 4 For 3 Against
|
0003| Yes: 4
|
0004| No: Rodarte, Robinson, Feldman
|
0005| Excused: Smith, Garcia
|
0006| Absent: None
|
0007|
|
0008|
|
0009|
|
0010|
|
0011| H0328PA1
|