0001| HOUSE BILL 223 | 0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998 | 0003| INTRODUCED BY | 0004| JERRY W. SANDEL | 0005| | 0006| | 0007| | 0008| FOR THE REVENUE STABILIZATION AND TAX POLICY COMMITTEE | 0009| | 0010| AN ACT | 0011| RELATING TO UNEMPLOYMENT COMPENSATION; DECREASING UNEMPLOYMENT | 0012| COMPENSATION TAXES; MAKING CHANGES IN THE UNEMPLOYMENT | 0013| COMPENSATION LAW TO COMPLY WITH FEDERAL REQUIREMENTS; AMENDING | 0014| AND ENACTING SECTIONS OF THE UNEMPLOYMENT COMPENSATION LAW. | 0015| | 0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0017| Section 1. Section 51-1-4 NMSA 1978 (being Laws 1969, | 0018| Chapter 213, Section 1, as amended) is amended to read: | 0019| "51-1-4. MONETARY COMPUTATION OF BENEFITS--PAYMENT | 0020| GENERALLY.-- | 0021| A. All benefits provided herein are payable from | 0022| the unemployment compensation fund. All benefits shall be | 0023| paid in accordance with such regulations as the secretary may | 0024| prescribe through employment offices or other agencies as the | 0025| secretary may by general rule approve. | - 1 - 0001| B. Weekly benefits shall be as follows: | 0002| (1) an individual's "weekly benefit amount" | 0003| is an amount equal to one twenty-sixth of the total wages for | 0004| insured work paid to him in that quarter of his base period in | 0005| which total wages were highest. No benefit as so computed may | 0006| be less than ten percent or more than fifty percent of the | 0007| state's average weekly wage for all insured work. The state's | 0008| average weekly wage shall be computed from all wages reported | 0009| to the department from employing units in accordance with | 0010| regulations of the secretary for the period ending June 30 of | 0011| each calendar year divided by the total number of covered | 0012| employees divided by fifty-two, effective for the benefit | 0013| years commencing on or after the first Sunday of the following | 0014| calendar year. Any such individual is not eligible to receive | 0015| benefits unless his total base-period wages equal at least one | 0016| and one-fourth times the wages for insured work in that | 0017| quarter of his base period in which such wages are highest. | 0018| For purposes of this subsection, "total wages" means all | 0019| remuneration for insured work, including commissions and | 0020| bonuses and the cash value of all remuneration in a medium | 0021| other than cash; | 0022| (2) each eligible individual who is | 0023| unemployed in any week during which he is in a continued | 0024| claims status shall be paid, with respect to such week, a | 0025| benefit in an amount equal to his weekly benefit amount, less | - 2 - 0001| that part of the wages, if any, or earnings from self- | 0002| employment, payable to him with respect to such week which is | 0003| in excess of one-fifth of his weekly benefit amount. For | 0004| purposes of this subsection only, "wages" includes all | 0005| remuneration for services actually performed in any week for | 0006| which benefits are claimed, vacation pay for any period for | 0007| which the individual has a definite return-to-work date, wages | 0008| in lieu of notice and back pay for loss of employment but does | 0009| not include payments through a court for time spent in jury | 0010| service; | 0011| (3) notwithstanding any other provision of | 0012| this section, each eligible individual who, pursuant to a plan | 0013| financed in whole or in part by a base-period employer of such | 0014| individual, is receiving a governmental or other pension, | 0015| retirement pay, annuity or any other similar periodic payment | 0016| that is based on the previous work of such individual and who | 0017| is unemployed with respect to any week ending subsequent to | 0018| April 9, 1981 shall be paid with respect to such week, in | 0019| accordance with regulations prescribed by the secretary, | 0020| compensation equal to his weekly benefit amount reduced, but | 0021| not below zero, by the prorated amount of such pension, | 0022| retirement pay, annuity or other similar periodic payment that | 0023| exceeds the percentage contributed to the plan by the eligible | 0024| individual. The maximum benefit amount payable to such | 0025| eligible individual shall be an amount not more than twenty- | - 3 - 0001| six times his reduced weekly benefit amount. If payments | 0002| referred to in this section are being received by any | 0003| individual under the federal Social Security Act, the division | 0004| shall take into account the individual's contribution and make | 0005| no reduction in the weekly benefit amount; | 0006| (4) in the case of a lump-sum payment of a | 0007| pension, retirement or retired pay, annuity or other similar | 0008| payment by a base-period employer that is based on the | 0009| previous work of such individual, such payment shall be | 0010| allocated, in accordance with regulations prescribed by the | 0011| secretary, and shall reduce the amount of unemployment | 0012| compensation paid, but not below zero, in accordance with | 0013| Paragraph (3) of this subsection; and | 0014| (5) the retroactive payment of a pension, | 0015| retirement or retired pay, annuity or any other similar | 0016| periodic payment as provided in Paragraphs (3) and (4) of this | 0017| subsection attributable to weeks during which an individual | 0018| has claimed or has been paid unemployment compensation shall | 0019| be allocated to such weeks and shall reduce the amount of | 0020| unemployment compensation for such weeks, but not below zero, | 0021| by an amount equal to the prorated amount of such pension. | 0022| Any overpayment of unemployment compensation benefits | 0023| resulting from the application of the provisions of this | 0024| paragraph shall be recovered from the claimant in accordance | 0025| with the provisions of Section 51-1-38 NMSA 1978. | - 4 - 0001| C. Any otherwise eligible individual is entitled | 0002| during any benefit year to a total amount of benefits equal to | 0003| whichever is the lesser of twenty-six times his weekly benefit | 0004| amount or sixty percent of his wages for insured work paid | 0005| during his base period. | 0006| D. Any benefit as determined in Subsection B or C | 0007| of this section, if not a multiple of one dollar ($1.00), | 0008| shall be rounded to the next lower multiple of one dollar | 0009| ($1.00). | 0010| E. The secretary may prescribe regulations to | 0011| provide for the payment of benefits that are due and payable | 0012| to the legal representative, dependents, relatives or next of | 0013| kin of claimants since deceased. These regulations need not | 0014| conform with the laws governing successions, and the payment | 0015| shall be deemed a valid payment to the same extent as if made | 0016| under a formal administration of the succession of the | 0017| claimant. | 0018| F. The division, on its own initiative, may | 0019| reconsider a monetary determination whenever it is determined | 0020| that an error in computation or identity has occurred or that | 0021| wages of the claimant pertinent to such determination but not | 0022| considered have been newly discovered or that the benefits | 0023| have been allowed or denied on the basis of misrepresentation | 0024| of fact, but no redetermination shall be made after one year | 0025| from the date of the original monetary determination. Notice | - 5 - 0001| of a redetermination shall be given to all interested parties | 0002| and shall be subject to an appeal in the same manner as the | 0003| original determination. In the event that an appeal involving | 0004| an original monetary determination is pending at the time a | 0005| redetermination is issued, the appeal, unless withdrawn, shall | 0006| be treated as an appeal from such redetermination." | 0007| Section 2. Section 51-1-8 NMSA 1978 (being Laws 1936 | 0008| (S.S.), Chapter 1, Section 6, as amended) is amended to read: | 0009| "51-1-8. CLAIMS FOR BENEFITS.-- | 0010| A. Claims for benefits shall be made in accordance | 0011| with such regulations as the secretary may prescribe. Each | 0012| employer shall post and maintain printed notices, in places | 0013| readily accessible to employees, concerning their rights to | 0014| file claims for unemployment benefits upon termination of | 0015| their employment. Such notices shall be supplied by the | 0016| division to each employer without cost to him. | 0017| B. A representative designated by the secretary as | 0018| a claims examiner shall promptly examine the application and | 0019| each weekly claim and, on the basis of the facts found, shall | 0020| determine whether the claimant is unemployed, the week with | 0021| respect to which benefits shall commence, the weekly benefit | 0022| amount payable, the maximum duration of benefits, whether the | 0023| claimant is eligible for benefits pursuant to Section 51-1-5 | 0024| NMSA 1978 and whether the claimant shall be disqualified | 0025| pursuant to Section 51-1-7 NMSA 1978. With the approval of | - 6 - 0001| the secretary, the claims examiner may refer, without | 0002| determination, claims or any specified issues involved therein | 0003| that raise complex questions of fact or law to a hearing | 0004| officer for the division for a fair hearing and decision in | 0005| accordance with the procedure described in Subsection D of | 0006| this section. The claims examiner shall promptly notify the | 0007| claimant and any other interested party of the determination | 0008| and the reasons therefor. Unless the claimant or ~~[any such]~~ | 0009| interested party, within fifteen calendar days after the date | 0010| of notification or mailing of ~~[such]~~ the determination, | 0011| files an appeal from ~~[such]~~ the determination, ~~[such]~~ | 0012| the determination shall be the final decision of the | 0013| division; provided that the claims examiner may reconsider a | 0014| nonmonetary determination if additional information not | 0015| previously available is provided or obtained or whenever he | 0016| finds an error in the application of law has occurred, but no | 0017| redetermination shall be made more than twenty days from the | 0018| date of the initial nonmonetary determination. Notice of a | 0019| nonmonetary redetermination shall be given to all interested | 0020| parties and shall be subject to appeal in the same manner as | 0021| the original nonmonetary determination. If an appeal is | 0022| pending at the time a redetermination is issued, the appeal, | 0023| unless withdrawn, shall be treated as an appeal from ~~[such]~~ | 0024| the redetermination. | 0025| C. In the case of a claim for waiting period | - 7 - 0001| credit or benefits, "interested party", for purposes of | 0002| determinations and adjudication proceedings and notices | 0003| thereof, means: | 0004| (1) in the event of an issue concerning a | 0005| separation from work for reasons other than lack of work, the | 0006| claimant's most recent employer or most recent employing unit; | 0007| (2) in the event of an issue concerning a | 0008| separation from work for lack of work, the employer or | 0009| employing unit from whom the claimant separated for reasons | 0010| other than lack of work if he has not worked and earned wages | 0011| in insured work or bona fide employment other than self- | 0012| employment in an amount equal to or exceeding five times his | 0013| weekly benefit amount; or | 0014| (3) in all other cases involving the | 0015| allowance or disallowance of a claim, the secretary, the | 0016| claimant and any employing unit directly involved in the facts | 0017| at issue. | 0018| D. Upon appeal by any party, a hearing officer | 0019| designated by the secretary shall afford the parties | 0020| reasonable opportunity for a fair hearing to be held de novo, | 0021| and the hearing officer shall issue findings of fact and a | 0022| decision which affirms, modifies or reverses the determination | 0023| of the claims examiner or tax representative on the facts or | 0024| the law, based upon the evidence introduced at such hearing, | 0025| including the documents and statements in the claim or tax | - 8 - 0001| records of the division. All hearings shall be held in | 0002| accordance with regulations of the secretary and decisions | 0003| issued promptly in accordance with time lapse standards | 0004| promulgated by the secretary of the United States department | 0005| of labor. The parties shall be duly notified of the decision, | 0006| together with the reasons therefor, which shall be deemed to | 0007| be the final decision of the department, unless within fifteen | 0008| days after the date of notification or mailing of ~~[such]~~ | 0009| the decision further appeal is initiated pursuant to | 0010| Subsection H of this section. | 0011| E. Except with the consent of the parties, no | 0012| hearing officer or members of the board of review, established | 0013| in Subsection F of this section, or secretary shall sit in any | 0014| administrative or adjudicatory proceeding in which: | 0015| (1) either of the parties is related to him | 0016| by affinity or consanguinity within the degree of first | 0017| cousin; | 0018| (2) he was counsel for either party in that | 0019| action; or | 0020| (3) he has an interest which would prejudice | 0021| his rendering an impartial decision. | 0022| The secretary, any member of the board of review or | 0023| appeal tribunal hearing officer shall withdraw from any | 0024| proceeding in which he cannot accord a fair and impartial | 0025| hearing or when a reasonable person would seriously doubt | - 9 - 0001| whether the hearing officer, board member or secretary could | 0002| be fair and impartial. Any party may request a | 0003| disqualification of any appeal tribunal hearing officer or | 0004| board of review member by filing an affidavit with the board | 0005| of review or appeal tribunal promptly upon discovery of the | 0006| alleged grounds for disqualification, stating with | 0007| particularity the grounds upon which it is claimed that the | 0008| person cannot be fair and impartial. The disqualification | 0009| shall be mandatory if sufficient factual basis is set forth in | 0010| the affidavit of disqualification. If a member of the board | 0011| of review is disqualified or withdraws from any proceeding, | 0012| the remaining members of the board of review may appoint an | 0013| appeal tribunal hearing officer to sit on the board of review | 0014| for the proceeding involved. | 0015| F. There is established within the department, for | 0016| the purpose of providing higher level administrative appeal | 0017| and review of determinations of a claims examiner or decisions | 0018| issued by a hearing officer pursuant to Subsection B or D of | 0019| this section, a "board of review" consisting of three members. | 0020| Two members shall be appointed by the governor with the | 0021| consent of the senate. The members so appointed shall hold | 0022| office at the pleasure of the governor for terms of four | 0023| years. One member appointed by the governor shall be a person | 0024| who, on account of his previous vocation, employment or | 0025| affiliation, can be classed as a representative of employers, | - 10 - 0001| and the other member appointed by the governor shall be a | 0002| person who, on account of his previous vocation, employment or | 0003| affiliation, can be classed as a representative of employees. | 0004| The third member shall be an employee of the department | 0005| appointed by the secretary who shall serve as chairman of the | 0006| board. Either member of the board of review appointed by the | 0007| governor who has missed two consecutive meetings of the board | 0008| may be removed from the board by the governor. Actions of the | 0009| board shall be taken by majority vote. If a vacancy on the | 0010| board in a position appointed by the governor occurs between | 0011| sessions of the legislature, the position shall be filled by | 0012| the governor until the next regular legislative session. The | 0013| board shall meet at the call of the secretary. Members of the | 0014| board appointed by the governor shall be paid per diem and | 0015| mileage in accordance with the Per Diem and Mileage Act for | 0016| necessary travel to attend regularly scheduled meetings of the | 0017| board of review for the purpose of conducting the board's | 0018| appellate and review duties. | 0019| G. The board of review shall hear and review all | 0020| cases appealed in accordance with Subsection H of this | 0021| section. The board of review may modify, affirm or reverse | 0022| the decision of the hearing officer or remand any matter to | 0023| the claims examiner, tax representative or hearing officer for | 0024| further proceedings. Each member appointed by the governor | 0025| shall be compensated at the rate of fifteen dollars ($15.00) | - 11 - 0001| for each case reviewed up to a maximum compensation of twelve | 0002| thousand dollars ($12,000) in any one fiscal year. | 0003| H. Any party aggrieved by a final decision of a | 0004| hearing officer may file, in accordance with regulations | 0005| prescribed by the secretary, an application for appeal and | 0006| review of ~~[such]~~ the decision with the secretary. The | 0007| secretary shall review the application and shall, within | 0008| fifteen days after receipt of the application, either affirm | 0009| the decision of the hearing officer, remand the matter to the | 0010| hearing officer, tax representative or the claims examiner | 0011| for an additional hearing or refer the decision to the board | 0012| of review for further review and decision on the merits of the | 0013| appeal. If the secretary affirms the decision of the hearing | 0014| officer, that decision shall be the final administrative | 0015| decision of the department and any appeal therefrom shall be | 0016| taken to the district court in accordance with the provisions | 0017| of Subsections M and N of this section. If the secretary | 0018| remands a matter to a hearing officer, tax representative or | 0019| claims examiner for an additional hearing, judicial review | 0020| shall be permitted only after issuance of a final | 0021| administrative decision. If the secretary refers the decision | 0022| of the hearing officer to the board of review for further | 0023| review, the board's decision on the merits of the appeal will | 0024| be the final administrative decision of the department, which | 0025| may be appealed to the district court in accordance with the | - 12 - 0001| provisions of Subsections M and N of this section. If the | 0002| secretary takes no action within fifteen days of receipt of | 0003| the application for appeal and review, the decision will be | 0004| promptly scheduled for review by the board of review as though | 0005| it had been referred by the secretary. The secretary may | 0006| request the board of review to review a decision of a hearing | 0007| officer that the secretary believes to be inconsistent with | 0008| the law or with applicable rules of interpretation or that is | 0009| not supported by the evidence, and the board of review shall | 0010| grant the request if it is filed within fifteen days of the | 0011| issuance of the decision of the hearing officer. The | 0012| secretary may also direct that any pending determination or | 0013| adjudicatory proceeding be removed to the board of review for | 0014| a final decision. If the board of review holds a hearing on | 0015| any matter, the hearing shall be conducted by a quorum of the | 0016| board of review in accordance with regulations prescribed by | 0017| the secretary for hearing appeals. The board of review shall | 0018| promptly notify the interested parties of its findings of fact | 0019| and decision. A decision of the board of review on any | 0020| disputed matter reviewed and decided by it shall be based upon | 0021| the law and the lawful rules of interpretation issued by the | 0022| secretary, and it shall be the final administrative decision | 0023| of the department, except in cases of remand. If the board of | 0024| review remands a matter to a hearing officer, claims examiner | 0025| or tax representative, judicial review shall be permitted only | - 13 - 0001| after issuance of a final administrative decision. | 0002| I. Notwithstanding any other provision of this | 0003| section granting any party the right to appeal, benefits shall | 0004| be paid promptly in accordance with a determination or a | 0005| decision of a claims examiner, hearing officer, secretary, | 0006| board of review or a reviewing court, regardless of the | 0007| pendency of the period to file an appeal or petition for | 0008| judicial review that is provided with respect thereto in | 0009| Subsection D or M of this section or the pendency of any such | 0010| filing or petition until such determination or decision has | 0011| been modified or reversed by a subsequent decision. The | 0012| provisions of this subsection shall apply to all claims for | 0013| benefits pending on the date of its enactment. | 0014| J. If a prior determination or decision allowing | 0015| benefits is affirmed by a decision of the department, | 0016| including the board of review or a reviewing court, ~~[such]~~ | 0017| the benefits shall be paid promptly regardless of any | 0018| further appeal which may thereafter be available to the | 0019| parties, and no injunction, supersedeas, stay or other writ or | 0020| process suspending the payment of ~~[such]~~ benefits shall be | 0021| issued by the secretary or board of review or any court, and | 0022| no action to recover ~~[such]~~ benefits paid to a claimant | 0023| shall be taken. If a determination or decision allowing | 0024| benefits is finally modified or reversed, the appropriate | 0025| contributing employer's account will be relieved of benefit | - 14 - 0001| charges in accordance with Subsection B of Section 51-1-11 | 0002| NMSA 1978. | 0003| K. The manner in which disputed claims shall be | 0004| presented, the reports thereon required from the claimant and | 0005| from employers and the conduct of hearings and appeals shall | 0006| be in accordance with rules prescribed by the secretary for | 0007| determining the rights of the parties, whether or not ~~[such]~~ | 0008| the rules conform to common law or statutory rules of | 0009| evidence and other technical rules of procedure. A hearing | 0010| officer or the board of review may refer to the secretary for | 0011| interpretation any question of controlling legal significance, | 0012| and the secretary shall issue a declaratory interpretation, | 0013| which shall be binding upon the decision of the hearing | 0014| officer and the board of review. A full and complete record | 0015| shall be kept of all proceedings in connection with a disputed | 0016| claim. All testimony at any hearing upon a disputed claim | 0017| shall be recorded but need not be transcribed unless the | 0018| disputed claim is appealed to the district court. | 0019| L. Witnesses subpoenaed pursuant to this section | 0020| shall be allowed fees at a rate fixed by the secretary. Such | 0021| fees and all administrative expenses of proceedings involving | 0022| disputed claims shall be deemed a part of the expense of | 0023| administering the Unemployment Compensation Law. | 0024| M. Any determination or decision of a claims | 0025| examiner or hearing officer or by a representative of the tax | - 15 - 0001| section of the department in the absence of an appeal | 0002| therefrom as provided by this section shall become final | 0003| fifteen days after the date of notification or mailing | 0004| thereof, and judicial review thereof shall be permitted only | 0005| after any party claiming to be aggrieved thereby has exhausted | 0006| his remedies as provided in Subsection H of this section. The | 0007| division and any employer or claimant who is affected by the | 0008| decision shall be joined as a party in any judicial action | 0009| involving ~~[any such]~~ the decision. All parties shall be | 0010| served with an endorsed copy of the petition within thirty | 0011| days from the date of filing and an endorsed copy of the order | 0012| granting the petition within fifteen days from entry of the | 0013| order. Service on the department shall be made on the | 0014| secretary or his designated legal representative either by | 0015| mail with accompanying certification of service or by personal | 0016| service. The division may be represented in ~~[any such]~~ a | 0017| judicial action by an attorney employed by the department or, | 0018| when requested by the secretary, by the attorney general or | 0019| any district attorney. | 0020| N. The final decision of the secretary or board of | 0021| review upon any disputed matter may be reviewed both upon the | 0022| law, including the lawful rules of interpretation issued by | 0023| the secretary, and the facts by the district court of the | 0024| county wherein the person seeking the review resides upon | 0025| certiorari, unless it is determined by the district court | - 16 - 0001| where the petition is filed that, as a matter of equity and | 0002| due process, venue should be in a different county. For the | 0003| purpose of ~~[such]~~ the review, the division shall return on | 0004| ~~[such]~~ certiorari the reports and all of the evidence heard | 0005| by it on ~~[any such]~~ the reports and all the papers and | 0006| documents in its files affecting the matters and things | 0007| involved in such certiorari. The district court shall render | 0008| its judgment after hearing, and either the department or any | 0009| other party ~~[thereto]~~ affected may appeal from ~~[such]~~ | 0010| the judgment to the court of appeals in accordance with the | 0011| rules of appellate procedure. ~~[Such]~~ Certiorari shall not | 0012| be granted unless ~~[the same is]~~ applied for within thirty | 0013| days from the date of the final decision of the secretary or | 0014| board of review. ~~[Such]~~ Certiorari shall be heard in a | 0015| summary manner and shall be given precedence over all other | 0016| civil cases except cases arising under the Workers' | 0017| Compensation Act of this state. It ~~[shall]~~ is not ~~[be]~~ | 0018| necessary in any proceedings before the division to enter | 0019| exceptions to the rulings, and no bond shall be required in | 0020| obtaining certiorari from the district court ~~[as hereinabove~~ | 0021| ~~provided]~~, but ~~[such]~~ certiorari shall be granted as a | 0022| matter of right to the party applying therefor." | 0023| Section 3. Section 51-1-11 NMSA 1978 (being Laws 1961, | 0024| Chapter 139, Section 3, as amended) is amended to read: | 0025| "51-1-11. FUTURE RATES BASED ON BENEFIT EXPERIENCE.-- | - 17 - 0001| A. The division shall maintain a separate account | 0002| for each contributing employer and shall credit his account | 0003| with all contributions paid by him under the Unemployment | 0004| Compensation Law. Nothing in the Unemployment Compensation | 0005| Law shall be construed to grant any employer or individuals in | 0006| his service prior claims or rights to the amounts paid by the | 0007| employer into the fund. | 0008| B. Benefits paid to an individual shall be charged | 0009| against the accounts of his base-period employers on a pro | 0010| rata basis according to the proportion of his total base- | 0011| period wages received from each, except that no benefits paid | 0012| to a claimant as extended benefits under the provisions of | 0013| Section 51-1-48 NMSA 1978 shall be charged to the account of | 0014| any base-period employer who is not on a reimbursable basis | 0015| and who is not a governmental entity and, except as the | 0016| secretary shall by regulation prescribe otherwise, in the case | 0017| of benefits paid to an individual who: | 0018| (1) left the employ of a base-period employer | 0019| who is not on a reimbursable basis voluntarily without good | 0020| cause in connection with his employment; | 0021| (2) was discharged from the employment of a | 0022| base-period employer who is not on a reimbursable basis for | 0023| misconduct connected with his work; | 0024| (3) received benefits based upon wages earned | 0025| from a base-period employer who is not on a reimbursable basis | - 18 - 0001| for work performed in a work-release program designed to give | 0002| an inmate of a correctional institution an opportunity to work | 0003| while serving a term of incarceration if the inmate's | 0004| separation was caused by his release from prison; | 0005| (4) is employed part-time by a base-period | 0006| employer who is not on a reimbursable basis and who continues | 0007| to furnish the individual the same part-time work while the | 0008| individual is separated from full-time work for a | 0009| nondisqualifying reason; or | 0010| (5) received benefits based upon wages earned | 0011| from a base-period employer who is not on a reimbursable basis | 0012| while attending approved training under the provisions of | 0013| Subsection E of Section 51-1-5 NMSA 1978. | 0014| C. The division shall not charge a contributing or | 0015| reimbursing base-period employer's account with any portion of | 0016| benefit amounts ~~[which]~~ that the division can bill to or | 0017| recover from the federal government as either regular or | 0018| extended benefits. | 0019| D. All contributions to the fund shall be pooled | 0020| and available to pay benefits to any individual entitled | 0021| thereto, irrespective of the source of such contributions. | 0022| The standard rate of contributions payable by each employer | 0023| shall be five and four-tenths percent. | 0024| E. No employer's rate shall be varied from the | 0025| standard rate for any calendar year unless, as of the | - 19 - 0001| computation date for that year, his account has been | 0002| chargeable with benefits throughout the preceding thirty-six | 0003| months, except that: | 0004| (1) the provisions of this subsection shall | 0005| not apply to governmental entities; | 0006| (2) subsequent to December 31, 1984, any | 0007| employing unit that becomes an employer subject to the payment | 0008| of contributions under the Unemployment Compensation Law or | 0009| has been an employer subject to the payment of contributions | 0010| at a standard rate of two and seven-tenths percent through | 0011| December 31, 1984 shall be subject to the payment of | 0012| contributions at the reduced rate of two and seven-tenths | 0013| percent until, as of the computation date of a particular | 0014| year, the employer's account has been chargeable with benefits | 0015| throughout the preceding thirty-six months; and | 0016| (3) any individual, type of organization or | 0017| employing unit that acquires all or part of the trade or | 0018| business of another employing unit, pursuant to Paragraphs (2) | 0019| and (3) of Subsection E of Section 51-1-42 NMSA 1978, that has | 0020| a reduced rate of contribution shall be entitled to the | 0021| transfer of the reduced rate to the extent permitted under | 0022| Subsection G of this section. | 0023| F. The secretary shall, for the year 1942 and for | 0024| each calendar year thereafter, classify employers in | 0025| accordance with their actual experience in the payment of | - 20 - 0001| contributions and with respect to benefits charged against | 0002| their accounts, with a view of fixing such contribution rates | 0003| as will reflect such benefit experience. Each employer's rate | 0004| for any calendar year shall be determined on the basis of his | 0005| record and the condition of the fund as of the computation | 0006| date for such calendar year. | 0007| An employer may make voluntary payments in addition to | 0008| the contributions required under the Unemployment Compensation | 0009| Law, which shall be credited to his account in accordance with | 0010| department regulation. The voluntary payments shall be | 0011| included in the employer's account as of the employer's most | 0012| recent computation date if they are made on or before the | 0013| following March 1. Voluntary payments when accepted from an | 0014| employer ~~[will]~~ shall not be refunded in whole or in part. | 0015| G. In the case of a transfer of an employing | 0016| enterprise, the experience history of the transferred | 0017| enterprise as provided in Subsection F of this section | 0018| ~~[will]~~ shall be transferred from the predecessor employer | 0019| to the successor under the following conditions and in | 0020| accordance with the applicable regulations of the secretary: | 0021| (1) Definitions: | 0022| (a) "employing enterprise" is a | 0023| business activity engaged in by a contributing employing unit | 0024| in which one or more persons have been employed within the | 0025| current or the three preceding calendar quarters; | - 21 - 0001| (b) "predecessor" means the owner and | 0002| operator of an employing enterprise immediately prior to the | 0003| transfer of such enterprise; | 0004| (c) "successor" means any individual or | 0005| any type of organization that acquires an employing enterprise | 0006| and continues to operate such business entity; and | 0007| (d) "experience history" means the | 0008| experience rating record and reserve account, including the | 0009| actual contributions, benefit charges and payroll experience | 0010| of the employing enterprise. | 0011| (2) For the purpose of this section, two or | 0012| more employers who are parties to or the subject of any | 0013| transaction involving the transfer of an employing enterprise | 0014| shall be deemed to be a single employer and the experience | 0015| history of the employing enterprise shall be transferred to | 0016| the successor employer if the successor employer has acquired | 0017| by the transaction all of the business enterprises of the | 0018| predecessor; provided that: | 0019| (a) all contributions, interest and | 0020| penalties due from the predecessor employer have been paid; | 0021| (b) notice of the transfer has been | 0022| given in accordance with the regulations of the secretary | 0023| within four years of the transaction transferring the | 0024| employing enterprise or the date of the actual transfer of | 0025| control and operation of the employing enterprise; | - 22 - 0001| (c) in the case of the transfer of an | 0002| employing enterprise, the successor employer must notify the | 0003| division of the acquisition on or before the due date of the | 0004| successor employer's first wage and contribution report. If | 0005| the successor employer fails to notify the division of the | 0006| acquisition within this time limit, the division, when it | 0007| receives actual notice, ~~[will]~~ shall effect the transfer | 0008| of the experience history and applicable rate of contribution | 0009| retroactively to the date of the acquisition, and the | 0010| successor shall pay a penalty of fifty dollars ($50.00); and | 0011| (d) where the transaction involves only | 0012| a merger, consolidation or other form of reorganization | 0013| without a substantial change in the ownership and controlling | 0014| interest of the business entity, as determined by the | 0015| secretary, the limitations on transfers stated in | 0016| Subparagraphs (a), (b) and (c) of this paragraph shall not | 0017| apply. No party to a merger, consolidation or other form of | 0018| reorganization described in this paragraph shall be relieved | 0019| of liability for any contributions, interest or penalties due | 0020| and owing from the employing enterprise at the time of the | 0021| merger, consolidation or other form of reorganization. | 0022| (3) The applicable experience history may be | 0023| transferred to the successor in the case of a partial transfer | 0024| of an employing enterprise if the successor has acquired one | 0025| or more of the several employing enterprises of a predecessor | - 23 - 0001| but not all of the employing enterprises of the predecessor | 0002| and each employing enterprise so acquired was operated by the | 0003| predecessor as a separate store, factory, shop or other | 0004| separate employing enterprise and the predecessor, throughout | 0005| the entire period of his contribution with liability | 0006| applicable to each enterprise transferred, has maintained and | 0007| preserved payroll records ~~[which]~~ that, together with | 0008| records of contribution liability and benefit chargeability, | 0009| can be separated by the parties from the enterprises retained | 0010| by the predecessor to the satisfaction of the secretary or his | 0011| delegate. A partial experience history transfer will be made | 0012| only if: | 0013| (a) the successor notifies the division | 0014| of the acquisition, in writing, not later than the due date of | 0015| the successor's first quarterly wage and contribution report | 0016| after the effective date of the acquisition; | 0017| (b) the successor files an application | 0018| provided by the division that contains the endorsement of the | 0019| predecessor within thirty days from the delivery or mailing of | 0020| such application by the division to the successor's last known | 0021| address; and | 0022| (c) the successor files with the | 0023| application a Form ES-903A or its equivalent with a schedule | 0024| of the name and social security number of and the wages paid | 0025| to and the contributions paid for each employee for the three | - 24 - 0001| and one-half year period preceding the date of computation as | 0002| defined in Subparagraph (d) of Paragraph (3) of Subsection H | 0003| of this section through the date of transfer or such lesser | 0004| period as the enterprises transferred may have been in | 0005| operation. The application and Form ES-903A ~~[must]~~ shall | 0006| be supported by the predecessor's permanent employment | 0007| records, which ~~[must]~~ shall be available for audit by the | 0008| division. The application and Form ES-903A shall be reviewed | 0009| by the division and, upon approval, the percentage of the | 0010| predecessor's experience history attributable to the | 0011| enterprises transferred shall be transferred to the successor. | 0012| The percentage shall be obtained by dividing the taxable | 0013| payrolls of the transferred enterprises for such three and | 0014| one-half year period preceding the date of computation or such | 0015| lesser period as the enterprises transferred may have been in | 0016| operation by the predecessor's entire payroll. | 0017| H. For each calendar year, adjustments of | 0018| contribution rates below the standard or reduced rate and | 0019| measures designed to protect the fund are provided as follows: | 0020| (1) The total assets in the fund and the | 0021| total of the last annual payrolls of all employers subject to | 0022| contributions as of the computation date for each year shall | 0023| be determined. These annual totals are here called "the fund" | 0024| and "total payrolls". For each year, the "reserve" of each | 0025| employer qualified under Subsection E of this section shall be | - 25 - 0001| fixed by the excess of his total contributions over total | 0002| benefit charges computed as a percentage of his average | 0003| payroll reported for contributions. The determination of each | 0004| employer's annual rate, computed as of the computation date | 0005| for each calendar year, shall be made by matching his reserve | 0006| as shown in the reserve column with the corresponding rate | 0007| shown in the applicable rate schedule of the table provided in | 0008| Paragraph (4) of this subsection. | 0009| (2) Each employer's rate for each calendar | 0010| year commencing January 1, 1979 or thereafter shall be: | 0011| (a) the rate in schedule 1 of the table | 0012| provided in Paragraph (4) of this subsection on the | 0013| corresponding line as his reserve if the fund equals at least | 0014| four percent of the total payrolls; | 0015| (b) the rate in schedule 2 of the table | 0016| provided in Paragraph (4) of this subsection on the | 0017| corresponding line if the fund has dropped to between four | 0018| percent and three percent; | 0019| (c) the rate in schedule 3 of the table | 0020| provided in Paragraph (4) of this subsection on the | 0021| corresponding line if the fund has dropped to between three | 0022| percent and two percent; | 0023| (d) the rate in schedule 4 of the table | 0024| provided in Paragraph (4) of this subsection on the | 0025| corresponding line if the fund has dropped to between two | - 26 - 0001| percent and one and one-half percent; | 0002| (e) the rate in schedule 5 of the table | 0003| provided in Paragraph (4) of this subsection on the | 0004| corresponding line if the fund has dropped to between one and | 0005| one-half percent and one percent; or | 0006| (f) the rate in schedule 6 of the table | 0007| provided in Paragraph (4) of this subsection on the | 0008| corresponding line if the fund has dropped below one percent. | 0009| (3) As used in this section: | 0010| (a) "annual payroll" means the total | 0011| amount of remuneration from an employer for employment during | 0012| a twelve-month period ending on a computation date, and | 0013| "average payroll" means the average of the last three annual | 0014| payrolls; | 0015| (b) "base-period wages" means the wages | 0016| of an individual for insured work during his base period on | 0017| the basis of which his benefit rights were determined; | 0018| (c) "base-period employers" means the | 0019| employers of an individual during his base period; and | 0020| (d) "computation date" for each | 0021| calendar year means the close of business on June 30 of the | 0022| preceding calendar year. | 0023| (4) Table of employer reserves and | 0024| contribution rate schedules: | 0025| Employer Contribution Contribution Contribution | - 27 - 0001| Reserve Schedule 1 Schedule 2 Schedule 3 | 0002| 10.0% and over 0.1% 0.3% 0.6% | 0003| 9.0%-9.9% 0.3% 0.6% 0.9% | 0004| 8.0%-8.9% 0.6% 0.9% 1.2% | 0005| 7.0%-7.9% 0.9% 1.2% 1.5% | 0006| 6.0%-6.9% 1.2% 1.5% 1.8% | 0007| 5.0%-5.9% 1.5% 1.8% 2.1% | 0008| 4.0%-4.9% 1.8% 2.1% 2.4% | 0009| 3.0%-3.9% 2.1% 2.4% 2.7% | 0010| 2.0%-2.9% 2.4% 2.7% 3.0% | 0011| 1.0%-1.9% 2.7% 3.0% 3.3% | 0012| 0.9%-0.0% 3.0% 3.3% 3.6% | 0013| (-0.1%)-(-0.5%) 3.3% 3.6% 3.9% | 0014| (-0.5%)-(-1.0%) 4.2% 4.2% 4.2% | 0015| (-1.0%)-(-2.0%) 5.0% 5.0% 5.0% | 0016| Under (-2.0%) 5.4% 5.4% 5.4% | 0017| Employer Contribution Contribution Contribution | 0018| Reserve Schedule 4 Schedule 5 Schedule 6 | 0019| 10.0% and over 0.9% 1.2% 2.7% | 0020| 9.0%-9.9% 1.2% 1.5% 2.7% | 0021| 8.0%-8.9% 1.5% 1.8% 2.7% | 0022| 7.0%-7.9% 1.8% 2.1% 2.7% | 0023| 6.0%-6.9% 2.1% 2.4% 2.7% | 0024| 5.0%-5.9% 2.4% 2.7% 3.0% | 0025| 4.0%-4.9% 2.7% 3.0% 3.3% | - 28 - 0001| 3.0%-3.9% 3.0% 3.3% 3.6% | 0002| 2.0%-2.9% 3.3% 3.6% 3.9% | 0003| 1.0%-1.9% 3.6% 3.9% 4.2% | 0004| 0.9%-0.0% 3.9% 4.2% 4.5% | 0005| (-0.1%)-(-0.5%) 4.2% 4.5% 4.8% | 0006| (-0.5%)-(-1.0%) 4.5% 4.8% 5.1% | 0007| (-1.0%)-(-2.0%) 5.0% 5.1% 5.3% | 0008| Under (-2.0%) 5.4% 5.4% 5.4%. | 0009| I. The division shall promptly notify each | 0010| employer of his rate of contributions as determined for any | 0011| calendar year pursuant to this section. Such notification | 0012| shall include the amount determined as the employer's average | 0013| payroll, the total of all his contributions paid on his own | 0014| behalf and credited to his account for all past years and | 0015| total benefits charged to his account for all such years. | 0016| Such determination shall become conclusive and binding upon | 0017| the employer unless, within thirty days after the mailing of | 0018| notice thereof to his last known address or in the absence of | 0019| mailing, within thirty days after the delivery of such notice, | 0020| the employer files an application for review and | 0021| redetermination, setting forth his reason therefor. The | 0022| employer shall be granted an opportunity for a fair hearing in | 0023| accordance with regulations prescribed by the secretary, but | 0024| no employer shall have standing, in any proceeding involving | 0025| his rate of contributions or contribution liability, to | - 29 - 0001| contest the chargeability to his account of any benefits paid | 0002| in accordance with a determination, redetermination or | 0003| decision pursuant to Section 51-1-8 NMSA 1978, except upon the | 0004| ground that the services on the basis of which such benefits | 0005| were found to be chargeable did not constitute services | 0006| performed in employment for him and only in the event that he | 0007| was not a party to such determination, redetermination or | 0008| decision, or to any other proceedings under the Unemployment | 0009| Compensation Law in which the character of such services was | 0010| determined. The employer shall be promptly notified of the | 0011| decision on his application for redetermination, which shall | 0012| become final unless, within fifteen days after the mailing of | 0013| notice thereof to his last known address or in the absence of | 0014| mailing, within fifteen days after the delivery of such | 0015| notice, further appeal is initiated pursuant to Subsection D | 0016| of Section 51-1-8 NMSA 1978. | 0017| J. The division ~~[will]~~ shall provide each | 0018| contributing employer, within ninety days of the end of each | 0019| calendar quarter, a written determination of benefits | 0020| chargeable to his account. Such determination shall become | 0021| conclusive and binding upon the employer for all purposes | 0022| unless, within thirty days after the mailing of the | 0023| determination to his last known address or in the absence of | 0024| mailing, within thirty days after the delivery of such | 0025| determination, the employer files an application for review | - 30 - 0001| and redetermination, setting forth his reason therefor. The | 0002| employer shall be granted an opportunity for a fair hearing in | 0003| accordance with regulations prescribed by the secretary, but | 0004| no employer shall have standing in any proceeding involving | 0005| his contribution liability to contest the chargeability to his | 0006| account of any benefits paid in accordance with a | 0007| determination, redetermination or decision pursuant to Section | 0008| 51-1-8 NMSA 1978, except upon the ground that the services on | 0009| the basis of which such benefits were found to be chargeable | 0010| did not constitute services performed in employment for him | 0011| and only in the event that he was not a party to such | 0012| determination, redetermination or decision, or to any other | 0013| proceedings under the Unemployment Compensation Law in which | 0014| the character of such services was determined. The employer | 0015| shall be promptly notified of the decision on his application | 0016| for redetermination, which shall become final unless, within | 0017| fifteen days after the mailing of notice thereof to his last | 0018| known address or in the absence of mailing, within fifteen | 0019| days after the delivery of such notice, further appeal is | 0020| initiated pursuant to Subsection D of Section 51-1-8 NMSA | 0021| 1978. | 0022| K. The contributions, together with interest and | 0023| penalties thereon imposed by the Unemployment Compensation | 0024| Law, shall not be assessed nor shall action to collect the | 0025| same be commenced more than four years after a report showing | - 31 - 0001| the amount of the contributions was due. In the case of a | 0002| false or fraudulent contribution report with intent to evade | 0003| contributions or a willful failure to file a report of all | 0004| contributions due, the contributions, together with interest | 0005| and penalties thereon, may be assessed or an action to collect | 0006| such contributions may be begun at any time. Before the | 0007| expiration of such period of limitation, the employer and the | 0008| secretary may agree in writing to an extension thereof and the | 0009| period so agreed on may be extended by subsequent agreements | 0010| in writing. In any case where the assessment has been made | 0011| and action to collect has been commenced within four years of | 0012| the due date of any contribution, interest or penalty, | 0013| including the filing of a warrant of lien by the secretary | 0014| pursuant to Section 51-1-36 NMSA 1978, such action shall not | 0015| be subject to any period of limitation. | 0016| L. The secretary shall correct any error in the | 0017| determination of an employer's rate of contribution during the | 0018| calendar year to which the erroneous rate applies, | 0019| notwithstanding that notification of the employer's rate of | 0020| contribution may have been issued and contributions paid | 0021| pursuant to the notification. Upon issuance by the division | 0022| of a corrected rate of contribution, the employer shall have | 0023| the same rights to review and redetermination as provided in | 0024| Subsection I of this section. | 0025| M. Any interest required to be paid on advances to | - 32 - 0001| this state's unemployment compensation fund under Title | 0002| ~~[XII]~~ 12 of the Social Security Act shall be paid in a | 0003| timely manner as required under Section 1202 of Title ~~[XII]~~ | 0004| 12 of the Social Security Act and shall not be paid, | 0005| directly or indirectly, by the state from amounts in the | 0006| state's unemployment compensation fund. | 0007| N. Notwithstanding the provisions of this | 0008| section, the rate in schedule 1 of the table provided in | 0009| Paragraph (4) of Subsection H of this section shall be applied | 0010| for two calendar years beginning January 1, 1999." | 0011| Section 4. Section 51-1-18 NMSA 1978 (being Laws 1936 | 0012| (S.S.), Chapter 1, Section 8, as amended) is amended to read: | 0013| "51-1-18. PERIOD, ELECTION AND TERMINATION OF EMPLOYER'S | 0014| COVERAGE.-- | 0015| A. Except as otherwise provided in Subsection C of | 0016| this section, any employing unit ~~[which]~~ that is or | 0017| becomes an employer subject to the Unemployment Compensation | 0018| Law within any calendar year shall be subject to the | 0019| Unemployment Compensation Law during the whole of such | 0020| calendar year. | 0021| B. Except as otherwise provided in Subsection C of | 0022| this section, an employing unit shall cease to be an employer | 0023| subject to the Unemployment Compensation Law only as of | 0024| ~~[the]~~ January 1 of any calendar year if it files with the | 0025| department, between January 1 and March 15 of the year in | - 33 - 0001| which the employing unit desires termination of coverage, a | 0002| written application for termination of coverage and the | 0003| secretary finds: | 0004| (1) that there was no calendar quarter within | 0005| the preceding calendar year within which such employing unit | 0006| paid wages for employment amounting to four hundred fifty | 0007| dollars ($450) or more or as otherwise provided in Paragraphs | 0008| (6) and (7) of Subsection F of Section 51-1-42 NMSA 1978; and | 0009| (2) that there were no twenty different weeks | 0010| within the preceding calendar year, whether or not such weeks | 0011| were consecutive, within which such employing unit employed an | 0012| individual in employment subject to the Unemployment | 0013| Compensation Law. For the purpose of this subsection, the two | 0014| or more employing units mentioned in Paragraphs (2) and (3) of | 0015| Subsection E of Section 51-1-42 NMSA 1978 shall be treated as | 0016| a single employing unit. For like cause or when the total | 0017| experience history of a predecessor employing unit is | 0018| transferred pursuant to Section 51-1-11 NMSA 1978 or when, in | 0019| the opinion of the secretary, it is unlikely that an employing | 0020| unit will have individuals in employment at any time in the | 0021| future, termination of coverage may be granted on the | 0022| secretary's own initiative; provided that due notice is given | 0023| to the employing unit at its last address of record with the | 0024| department. The provisions of this subsection shall not apply | 0025| to any governmental unit. | - 34 - 0001| C. An employing unit, not otherwise subject to the | 0002| Unemployment Compensation Law, ~~[which]~~ that files with the | 0003| department its written election to become an employer subject | 0004| hereto for not less than two calendar years shall, with the | 0005| written approval of such election by the secretary, become an | 0006| employer subject hereto to the same extent as all other | 0007| employers, as of the date stated in such approval, and shall | 0008| cease to be subject hereto as of January 1 of any calendar | 0009| year subsequent to such two calendar years only if, between | 0010| the dates of January 1 and March 15 of the year in which the | 0011| employing unit desires termination of coverage, it has filed | 0012| with the department a written notice to that effect or the | 0013| secretary, on his own initiative, has given notice of | 0014| termination of such coverage. | 0015| D. Any employing unit for which services that do | 0016| not constitute employment, as defined in the Unemployment | 0017| Compensation Law, are performed may file with the department a | 0018| written election that all such services performed by | 0019| individuals in its employ in one or more distinct | 0020| establishments or places of business shall be deemed to | 0021| constitute employment for all the purposes of the Unemployment | 0022| Compensation Law for not less than two calendar years. Upon | 0023| the written approval of such election by the secretary, such | 0024| services shall be deemed to constitute employment subject to | 0025| the Unemployment Compensation Law after the date stated in | - 35 - 0001| such approval. Such services shall cease to be deemed | 0002| employment subject hereto as of January 1 of any calendar year | 0003| subsequent to such two calendar years only if, between January | 0004| 1 and March 15 of the year in which the employing unit desires | 0005| termination of coverage, it has filed with the department a | 0006| written notice to that effect, or the secretary, on his own | 0007| initiative, has given notice of termination of such coverage. | 0008| E. The secretary may terminate the election of an | 0009| employer or employing unit made pursuant to Subsection C or D | 0010| of this section at any time the secretary determines that the | 0011| employer or employing unit is not abiding by all the | 0012| requirements of the Unemployment Compensation Law and the | 0013| regulations issued pursuant thereto, or if the employer or | 0014| employing unit that has made an election for coverage becomes | 0015| delinquent in the payment of its contributions or payment in | 0016| lieu of contributions, interest or penalties. | 0017| ~~[E.]~~ F. The secretary, on his own initiative | 0018| or upon written notification from an employer, may suspend | 0019| such employer's obligation for filing a quarterly wage and | 0020| contribution report as provided in the Unemployment | 0021| Compensation Law or any regulation issued pursuant thereto in | 0022| any case where the employer has ceased to and does not in the | 0023| immediate future expect to have individuals in employment; | 0024| provided that this subsection shall not apply ~~[nor shall it]~~ | 0025| or be a bar to the collection of contributions, interest and | - 36 - 0001| penalties if, in fact, it is determined that the employer had | 0002| an individual in employment subject to the Unemployment | 0003| Compensation Law during the period covered by the suspension." | 0004| Section 5. Section 51-1-19 NMSA 1978 (being Laws 1936 | 0005| (S.S.), Chapter 1, Section 9, as amended) is amended to read: | 0006| "51-1-19. UNEMPLOYMENT COMPENSATION FUND.-- | 0007| A. There is hereby established as a special fund, | 0008| separate and apart from all public money, or funds of this | 0009| state, an unemployment compensation fund, which shall be | 0010| administered by the department exclusively for the purposes of | 0011| this section. This fund shall consist of: | 0012| (1) all contributions collected and payments | 0013| in lieu of contributions collected or due pursuant to the | 0014| Unemployment Compensation Law; | 0015| (2) interest earned upon any money in the | 0016| fund; | 0017| (3) any property or securities acquired | 0018| through the use of money belonging to the fund; | 0019| (4) all earnings of such property or | 0020| securities; | 0021| (5) all money received from the federal | 0022| unemployment account in the unemployment trust fund in | 0023| accordance with Title 12 of the Social Security Act, as | 0024| amended; | 0025| (6) all money credited to this state's | - 37 - 0001| account in the unemployment trust fund pursuant to Section 903 | 0002| of the Social Security Act, as amended; | 0003| (7) all money received or due from the | 0004| federal government as reimbursements pursuant to Section 204 | 0005| of the Federal-State Extended Compensation Act of 1970; and | 0006| (8) all money received for the fund from any | 0007| other source. All money in the fund shall be mingled and | 0008| undivided. | 0009| B. The state treasurer shall be the treasurer and | 0010| custodian of the fund and shall administer such fund in | 0011| accordance with the directions of the department and shall | 0012| issue his checks upon it in accordance with such regulations | 0013| as the secretary may prescribe. He shall maintain, within the | 0014| fund, three separate accounts: | 0015| (1) a clearing account; | 0016| (2) an unemployment trust fund account; and | 0017| (3) a benefit account. | 0018| C. All money payable to the fund upon receipt | 0019| thereof by the department shall be forwarded to the treasurer | 0020| who shall immediately deposit it in the clearing account. | 0021| Refunds payable pursuant to Sections 51-1-36 and 51-1-42 NMSA | 0022| 1978 shall be paid from the clearing account or the benefit | 0023| account upon checks issued by the treasurer under the | 0024| direction of the department. After clearance thereof, all | 0025| money in the clearing account, except as herein otherwise | - 38 - 0001| provided, shall be immediately deposited with the secretary of | 0002| the treasury of the United States to the credit of the account | 0003| of this state in the unemployment trust fund, established and | 0004| maintained pursuant to Section 904 of the act of congress | 0005| known as the Social Security Act, as amended (42 U.S.C. | 0006| Section 1104), any provisions of law in this state relating to | 0007| the deposits, administration, release or disbursements of | 0008| money in the possession or custody of this state to the | 0009| contrary notwithstanding. The benefit account shall consist | 0010| of all money requisitioned from this state's account in the | 0011| unemployment trust fund. Except as herein otherwise provided, | 0012| money in the clearing and benefit accounts may be deposited by | 0013| the treasurer, under the direction of the secretary, in any | 0014| bank or public depository in which general funds of the state | 0015| may be deposited, but no public deposit insurance charge or | 0016| premium shall be paid out of the fund. Money in the clearing | 0017| and benefit accounts shall not be commingled with other state | 0018| funds but shall be maintained in separate accounts on the | 0019| books of the depository. | 0020| D. All of the money not deposited in the | 0021| treasury of the United States shall be subject to the general | 0022| laws applicable to the deposit of public money in the state; | 0023| and collateral pledged for this purpose shall be kept separate | 0024| and distinct from any collateral pledged to secure other funds | 0025| of this state. | - 39 - 0001| E. The state treasurer shall be liable on his | 0002| official bond for the faithful performance of his duties in | 0003| connection with the unemployment compensation fund provided | 0004| for under this section. The liability on the official bond of | 0005| the state treasurer shall be effective immediately upon the | 0006| enactment of this provision, and such liability shall exist in | 0007| addition to the liability of any separate bond existent on the | 0008| effective date of this provision or which may be given in the | 0009| future. All sums recovered for losses sustained by the fund | 0010| shall be deposited therein. | 0011| F. All money in the clearing account established | 0012| under this section is hereby appropriated for the purpose of | 0013| making refunds pursuant to Sections 51-1-36 and 51-1-42 NMSA | 0014| 1978, and all money in the clearing account not needed for the | 0015| purpose of making the refunds shall be immediately paid over | 0016| to the secretary of the treasury of the United States to the | 0017| credit of the account of this state in the unemployment trust | 0018| fund, and the money in the unemployment trust fund is hereby | 0019| appropriated for the purposes of this section. | 0020| ~~[C.]~~ G. Money shall be requisitioned from this | 0021| state's account in the unemployment trust fund solely for the | 0022| payment of benefits and for the payment of refunds pursuant to | 0023| Sections 51-1-36 and 51-1-42 NMSA 1978 in accordance with | 0024| regulations prescribed by the secretary, except that money | 0025| credited to this state's account pursuant to Section 903 of | - 40 - 0001| the Social Security Act, as amended, shall be used exclusively | 0002| as provided in Subsection ~~[D]~~ H of this section. The | 0003| secretary shall, from time to time, requisition from the | 0004| unemployment trust fund such amounts not exceeding the amounts | 0005| standing to this state's account therein, as he deems | 0006| necessary for the payment of such benefits and refunds for a | 0007| reasonable future period. Upon receipt thereof, the treasurer | 0008| shall deposit such money in the benefit account and shall | 0009| issue his checks for the payment of benefits solely from such | 0010| benefit account. Expenditures of such money in the benefit | 0011| account and refunds from the benefit account or the clearing | 0012| account shall not be subject to any provisions of law | 0013| requiring specific appropriations or other formal release by | 0014| state officers of money in their custody. All money shall be | 0015| withdrawn from the fund only upon a warrant issued by the | 0016| department or its duly authorized agent upon the treasurer, | 0017| and the treasurer upon receipt of such warrants shall | 0018| ~~[thereupon]~~ issue his check against the fund in accordance | 0019| with the warrant of the secretary. Any balance of money | 0020| requisitioned from the unemployment trust fund ~~[which]~~ | 0021| that remains unclaimed or unpaid in the benefit account | 0022| after the expiration of the period for which such sums were | 0023| requisitioned shall either be deducted from estimates for, and | 0024| may be utilized for, the payment of benefits and refunds | 0025| during succeeding periods, or in the discretion of the | - 41 - 0001| secretary, shall be redeposited with the secretary of the | 0002| treasury of the United States, to the credit of this state's | 0003| account in the unemployment trust fund, as provided in | 0004| Subsection ~~[B]~~ C of this section. All money in the | 0005| benefit account provided for hereinabove is hereby | 0006| appropriated for the payment of benefits and refunds as | 0007| provided herein. | 0008| ~~[D.]~~ H. Money credited to the account of this | 0009| state in the unemployment trust fund by the secretary of the | 0010| treasury of the United States pursuant to Section 903 of the | 0011| Social Security Act may be requisitioned from this state's | 0012| account or used only for: | 0013| (1) the payment of benefits pursuant to | 0014| Subsection ~~[C]~~ G of this section; and | 0015| (2) the payment of expenses incurred for the | 0016| administration of the Unemployment Compensation Law; provided, | 0017| that any money requisitioned and used for the payment of | 0018| expenses incurred for the administration of the Unemployment | 0019| Compensation Law must be authorized by the enactment of a | 0020| specific appropriation by the legislature ~~[which]~~ that: | 0021| (a) specifies the purpose for which | 0022| such money is appropriated and the amounts appropriated | 0023| therefor; | 0024| (b) limits the period within which such | 0025| money may be obligated to a period ending not more than two | - 42 - 0001| years after the date of the enactment of the appropriation | 0002| law; ~~[and]~~ | 0003| (c) limits the amount which may be | 0004| obligated ~~[during any twelve-month period beginning on July 1~~ | 0005| ~~and ending on the next June 30]~~ to an amount which does not | 0006| exceed the amount by which 1) the aggregate of the amounts | 0007| credited to the account of this state pursuant to Section 903 | 0008| of the Social Security Act ~~[during the same twelve-month~~ | 0009| ~~period and the thirty-four preceding twelve-month periods]~~ | 0010| exceeds 2) the aggregate of the amounts ~~[obligated for~~ | 0011| ~~administration and paid out for benefits]~~ used by the state | 0012| pursuant to this subsection and charged against the amounts | 0013| ~~[credited]~~ transferred to the account of this state | 0014| ~~[during such thirty-five twelve-month periods]~~; and | 0015| (d) notwithstanding the provisions of | 0016| Subparagraph (1) of this subsection, money credited with | 0017| respect to federal fiscal years 1999, 2000 and 2001 shall be | 0018| used only for the administration of the Unemployment | 0019| Compensation Law. | 0020| ~~[(3)]~~ I. Amounts credited to this state's | 0021| account in the unemployment trust fund under Section 903 of | 0022| the Social Security Act ~~[which]~~ that are obligated for | 0023| administration ~~[or paid out for benefits]~~ shall be charged | 0024| against ~~[equivalent amounts which were first credited and~~ | 0025| ~~which are not already so charged; except that no amount~~ | - 43 - 0001| ~~obligated for administration during a twelve-month period~~ | 0002| ~~specified herein may be charged against any amount credited~~ | 0003| ~~during such a twelve-month period earlier than the thirty-~~ | 0004| ~~fourth month preceding such period]~~ transferred amounts at | 0005| the exact time the obligation is entered into. The | 0006| appropriation, obligation and expenditure or other disposition | 0007| of money appropriated under Subsection H of this section shall | 0008| be accounted for in accordance with standards established by | 0009| the United States secretary of labor. | 0010| ~~[(4)]~~ J. Money ~~[requisitioned as provided~~ | 0011| ~~herein for the payment of expenses of administration]~~ | 0012| appropriated under Subsection H of this section for payment | 0013| of expenses of administration shall be requisitioned as needed | 0014| for payment of the obligations incurred under such | 0015| appropriations and, upon requisition, ~~[requisitioned as~~ | 0016| ~~provided herein for the payment of expenses of~~ | 0017| ~~administration]~~ shall be deposited in the unemployment | 0018| compensation administration fund but, until expended, shall | 0019| remain a part of the unemployment compensation fund for use | 0020| only in accordance with the conditions specified in ~~[this]~~ | 0021| Subsection H of this section, notwithstanding any provision | 0022| of Section 51-1-34 NMSA 1978. ~~[The department shall maintain~~ | 0023| ~~a separate record of the deposit, obligation, expenditure and~~ | 0024| ~~return of funds so deposited.]~~ Any money so deposited | 0025| ~~[which either will not be obligated within the period~~ | - 44 - 0001| ~~specified by the appropriation law or remains unobligated at~~ | 0002| ~~the end of the period, and any money which has been obligated~~ | 0003| ~~within the period but]~~ that will not be expended shall be | 0004| returned promptly to the account of the state in the | 0005| unemployment trust fund. | 0006| ~~[E.]~~ K. The provisions of Subsections A, B, C, | 0007| ~~[and]~~ D, E, F, G, H, I and J to the extent that they | 0008| relate to the unemployment trust fund, shall be operative only | 0009| so long as such unemployment trust fund continues to exist and | 0010| so long as the secretary of the treasury of the United States | 0011| ~~[of America]~~ continues to maintain for this state a separate | 0012| book account of all funds deposited therein by the state for | 0013| benefit purposes, together with this state's proportionate | 0014| share of the earnings of such unemployment trust fund from | 0015| which no other state is permitted to make withdrawals. If and | 0016| when such unemployment trust fund ceases to exist, or such | 0017| separate book account is no longer maintained, all money, | 0018| properties or securities therein belonging to the unemployment | 0019| compensation fund of this state shall be transferred to the | 0020| treasurer of the unemployment compensation fund, who shall | 0021| hold, invest, transfer, sell, deposit and release such money, | 0022| properties or securities in a manner approved by the | 0023| secretary, in accordance with the provisions of this section; | 0024| provided, that such money shall be invested in the following | 0025| readily marketable classes of securities; bonds or other | - 45 - 0001| interest-bearing obligations of the United States and of the | 0002| state; and, provided further, that such investment shall at | 0003| all times be so made that all the assets of the fund shall | 0004| always be readily convertible into cash when needed for the | 0005| payment of benefits. The treasurer shall dispose of | 0006| securities or other properties belonging to the unemployment | 0007| compensation fund only under the direction of the secretary." | 0008| Section 6. Section 51-1-37 NMSA 1978 (being Laws 1936 | 0009| (S.S.), Chapter 1, Section 15, as amended) is amended to read: | 0010| "51-1-37. PROTECTION OF RIGHTS AND BENEFITS.-- | 0011| A. Except as provided by Section 51-1-37.1 NMSA | 0012| l978, any agreement by an individual to waive, release or | 0013| commute his rights to benefits or any other rights under the | 0014| Unemployment Compensation Law shall be void. No agreement by | 0015| any individual in the employ of any person or concern to pay | 0016| all or any portion of an employer's contributions or payments | 0017| in lieu of contributions, required under the Unemployment | 0018| Compensation Law from such employer, shall be valid. No | 0019| employer shall directly or indirectly make or require or | 0020| accept any deduction from the remuneration of individuals in | 0021| his employ to finance the employer's contributions or payments | 0022| in lieu of contributions required from him or require or | 0023| accept any waiver of any right hereunder by an individual in | 0024| his employ. Any employer or officer or agent of an employer | 0025| who violates any provisions of this subsection shall, for each | - 46 - 0001| offense, be fined not less than one hundred dollars ($100) nor | 0002| more than one thousand dollars ($1,000) or be imprisoned for | 0003| not more than six months, or both. | 0004| B. No individual claiming benefits shall be | 0005| charged fees of any kind in any proceeding under the | 0006| Unemployment Compensation Law by the department or its | 0007| representatives or by any court or any officer thereof. Any | 0008| individual claiming benefits and any employer in any | 0009| proceeding before the secretary, his authorized representative | 0010| or the board of review may be represented by counsel or any | 0011| other duly authorized agent, but ~~[not]~~ no such counsel or | 0012| agent shall either charge or receive for such services more | 0013| than an amount approved by the secretary. Any person who | 0014| violates any provision of this subsection shall, for each such | 0015| offense, be fined not less than fifty dollars ($50.00) nor | 0016| more than five hundred dollars ($500) or imprisoned for not | 0017| more than six months, or both. | 0018| C. Except as provided ~~[by Section 5l-l-37.l NMSA~~ | 0019| ~~l978]~~ in Subsection D of this section, any assignment, | 0020| pledge or encumbrance of any right to benefits which are or | 0021| may become due or payable under the Unemployment Compensation | 0022| Law shall be void, and such rights to benefits shall be exempt | 0023| from levy, execution, attachment, garnishment or any other | 0024| remedy ~~[whatsoever]~~ provided for the collection of debt | 0025| ~~[and]~~. Benefits received by any individual, so long as they | - 47 - 0001| are not mingled with other funds of the recipient, shall be | 0002| exempt from ~~[any]~~ a remedy ~~[whatsoever]~~ for the | 0003| collection of ~~[all]~~ debts except debts incurred for | 0004| necessaries furnished to ~~[such]~~ an individual or his | 0005| spouse or dependents during the time when ~~[such individual]~~ | 0006| he was unemployed. Any waiver of any exemption provided for | 0007| in this subsection ~~[shall be]~~ is void. | 0008| D. The following actions for collection of the | 0009| indicated obligations may be taken: | 0010| (1) deduction and witholding of amounts of | 0011| unpaid child support pursuant to Section 51-1-37.1 NMSA 1978; | 0012| (2) levy by the federal internal revenue | 0013| service pursuant to Section 6331(h)(2)(C) of the Internal | 0014| Revenue Code provided that arrangements have been made by the | 0015| internal revenue service for reimbursement of the division for | 0016| administrative costs incurred by the division that are | 0017| attributable to the repayment of uncollected federal internal | 0018| revenue taxes. Levy of federal income taxes will be made in | 0019| accordance with such regulations as the secretary may | 0020| prescribe; and | 0021| (3) deduction and withholding of amounts for | 0022| food stamp overissuances pursuant to Section 51-1-37.2 NMSA | 0023| 1978." | 0024| Section 7. Section 51-1-37.1 NMSA 1978 (being Laws 1982, | 0025| Chapter 41, Section 4, as amended) is amended to read: | - 48 - 0001| "51-1-37.1. CHILD SUPPORT OBLIGATIONS.-- | 0002| A. ~~[An individual filing a claim to establish a~~ | 0003| ~~benefit year for unemployment compensation shall, at the time~~ | 0004| ~~of filing the claim, disclose whether or not the individual~~ | 0005| ~~owes child support obligations. If the individual is eligible~~ | 0006| ~~for unemployment compensation benefits and owes child support~~ | 0007| ~~obligations, the employment security department shall notify~~ | 0008| ~~the human services department of the name of the applicant and~~ | 0009| ~~the amount of benefits for which the claimant is eligible.]~~ | 0010| The division shall notify the human services department of | 0011| the name of any individual who files a new claim for | 0012| unemployment compensation and who is determined to be eligible | 0013| for benefits. | 0014| B. The ~~[employment security department]~~ | 0015| division shall deduct and withhold from any unemployment | 0016| compensation otherwise payable to an individual who owes child | 0017| support obligations: | 0018| (1) the amount specified by the individual to | 0019| be deducted and withheld, if an amount is not specified under | 0020| Paragraph (2) or (3) of this subsection; | 0021| (2) the amount specified in an agreement | 0022| between the individual and the child support enforcement | 0023| bureau of the human services department, pursuant to Section | 0024| 454(20)(B)(i) of the Social Security Act, a copy of which has | 0025| been provided to the ~~[employment security department]~~ | - 49 - 0001| division by the child support enforcement bureau; or | 0002| (3) any amount otherwise required to be so | 0003| deducted and withheld from such unemployment compensation | 0004| pursuant to a writ of garnishment or other legal process for | 0005| enforcement of judgments issued by any court or | 0006| administrative agency of competent jurisdiction in any state, | 0007| territory or possession of the United States or any foreign | 0008| country with which the United States has an agreement to honor | 0009| such process directed to the human services department for | 0010| the purpose of enforcing an individual's obligation to provide | 0011| child support. | 0012| C. Any amount withheld from the unemployment | 0013| compensation benefits due a claimant shall be considered as | 0014| payment of unemployment compensation benefits to the claimant | 0015| and paid by the individual in satisfaction of his child | 0016| support obligations. | 0017| D. The amount of child support obligations | 0018| withheld by the ~~[employment security department]~~ division | 0019| pursuant to this section shall be paid to the human services | 0020| department. | 0021| E. As used in this section, "unemployment | 0022| compensation benefits" means ~~[compensation]~~ benefits | 0023| payable under the Unemployment Compensation Law and ~~[any~~ | 0024| ~~compensation]~~ amounts payable by or through the | 0025| ~~[employment security department]~~ division pursuant to an | - 50 - 0001| agreement under any federal law providing for compensation, | 0002| assistance or allowance with respect to unemployment. | 0003| F. As used in this section, "child support | 0004| obligations" includes only obligations ~~[which]~~ that are | 0005| being enforced pursuant to a plan described in Section 454 of | 0006| the Social Security Act ~~[which]~~ that has been approved by | 0007| the United States secretary of health and human services under | 0008| Part D of Title ~~[IV]~~ 4 of the Social Security Act. | 0009| G. The human services department shall reimburse | 0010| the ~~[employment security department]~~ division for the | 0011| administrative costs incurred by ~~[the employment security~~ | 0012| ~~department which]~~ it that are attributable to the child | 0013| support obligations being enforced by the human services | 0014| department. If the human services department and the | 0015| ~~[employment security department]~~ division fail to agree on | 0016| the amount of such administrative costs, the state budget | 0017| division of the department of finance and administration shall | 0018| prescribe the amount of administrative costs to be | 0019| reimbursed." | 0020| Section 8. A new Section 51-1-37.2 NMSA 1978 is enacted | 0021| to read: | 0022| "51-1-37.2. [NEW MATERIAL] FOOD STAMP OVERISSUANCES.-- | 0023| A. The division shall notify the human services | 0024| department of the name and social security number of any | 0025| individual who files a new claim for unemployment compensation | - 51 - 0001| and who is determined to be eligible for benefits. This | 0002| information provided by the division shall be used by the | 0003| human services department to determine whether any eligible | 0004| individual owes an uncollected overissuance of food stamp | 0005| coupons, as defined in Section 13(c)(1) of the federal Food | 0006| Stamp Act of 1977. | 0007| B. The division shall deduct and withhold from any | 0008| unemployment compensation benefits payable to an individual | 0009| who owes an uncollected overissuance: | 0010| (1) the amount specified by the individual to | 0011| the division to be deducted and withheld under this | 0012| subsection; | 0013| (2) the amount, if any, determined pursuant | 0014| to an agreement submitted to the human services department | 0015| pursuant to Section 13(c)(3)(A) of the federal Food Stamp Act | 0016| of 1977; or | 0017| (3) any amount otherwise required to be | 0018| deducted and withheld from unemployment compensation pursuant | 0019| to Section 13(c)(3)(B) of the federal Food Stamp Act of 1977. | 0020| C. Any amount deducted and withheld pursuant to | 0021| this section shall be paid by the division to the human | 0022| services department. | 0023| D. Any amount deducted and withheld pursuant to | 0024| Subsection B of this section shall for all purposes be treated | 0025| as if it were paid to the individual as unemployment | - 52 - 0001| compensation and paid by such individual to the human services | 0002| department as repayment of the individual's uncollected | 0003| overissuance. | 0004| E. As used in this section, "unemployment | 0005| compensation benefits" means any benefits payable pursuant to | 0006| the Unemployment Compensation Law and amounts payable pursuant | 0007| to an agreement pursuant to any federal law providing for | 0008| compensation, assistance or allowances with respect to | 0009| unemployment. | 0010| F. This section applies only if arrangements have | 0011| been made for reimbursement by the human services department | 0012| for the administrative costs incurred by the division pursuant | 0013| to this section that are attributable to the repayment of | 0014| uncollected overissuances to the human services department." | 0015| Section 9. Section 51-1-42 NMSA 1978 (being Laws 1936 | 0016| (S.S.), Chapter 1, Section 19, as amended) is amended to read: | 0017| "51-1-42. DEFINITIONS.--As used in the Unemployment | 0018| Compensation Law: | 0019| A. "base period" means the first four of the last | 0020| five completed calendar quarters immediately preceding the | 0021| first day of an individual's benefit year; | 0022| B. "benefits" means the cash unemployment | 0023| compensation payments payable to an eligible individual | 0024| pursuant to Section 51-1-4 NMSA 1978 with respect to his weeks | 0025| of unemployment; | - 53 - 0001| C. "contributions" means the money payments | 0002| required by Section 51-1-9 NMSA 1978 to be made into the fund | 0003| by an employer on account of having individuals performing | 0004| services for him; | 0005| D. "employing unit" means any individual or type | 0006| of organization, including any partnership, association, | 0007| cooperative, trust, estate, joint-stock company, agricultural | 0008| enterprise, insurance company or corporation, whether domestic | 0009| or foreign, or the receiver, trustee in bankruptcy, trustee or | 0010| successor thereof, household, fraternity or club, the legal | 0011| representative of a deceased person or any state or local | 0012| government entity to the extent required by law to be covered | 0013| as an employer, which has in its employ one or more | 0014| individuals performing services for it within this state. All | 0015| individuals performing services for any employing unit | 0016| ~~[which]~~ that maintains two or more separate establishments | 0017| within this state shall be deemed to be employed by a single | 0018| employing unit for all the purposes of the Unemployment | 0019| Compensation Law. Individuals performing services for | 0020| contractors, subcontractors or agents ~~[which]~~ that are | 0021| performing work or services for an employing unit, as | 0022| described in this subsection, which is within the scope of the | 0023| employing unit's usual trade, occupation, profession or | 0024| business, shall be deemed to be in the employ of the employing | 0025| unit for all purposes of the Unemployment Compensation Law | - 54 - 0001| unless such contractor, subcontractor or agent is itself an | 0002| employer within the provision of Subsection E of this section; | 0003| E. "employer" includes: | 0004| (1) any employing unit which: | 0005| (a) unless otherwise provided in this | 0006| section, paid for service in employment as defined in | 0007| Subsection F of this section wages of four hundred fifty | 0008| dollars ($450) or more in any calendar quarter in either the | 0009| current or preceding calendar year or had in employment, as | 0010| defined in Subsection F of this section, for some portion of a | 0011| day in each of twenty different calendar weeks during either | 0012| the current or the preceding calendar year, and irrespective | 0013| of whether the same individual was in employment in each such | 0014| day, at least one individual; | 0015| (b) for the purposes of Subparagraph | 0016| (a) of this paragraph, if any week includes both December 31 | 0017| and January 1, the days of that week up to January 1 shall be | 0018| deemed one calendar week and the days beginning January 1, | 0019| another such week; and | 0020| (c) for purposes of defining an | 0021| "employer" under Subparagraph (a) of this paragraph, the wages | 0022| or remuneration paid to individuals performing services in | 0023| employment in agricultural labor or domestic services as | 0024| provided in Paragraphs (6) and (7) of Subsection F of this | 0025| section shall not be taken into account; except that any | - 55 - 0001| employing unit determined to be an employer of agricultural | 0002| labor under Paragraph (6) of Subsection F of this section | 0003| shall be an employer under Subparagraph (a) of this paragraph | 0004| so long as the employing unit is paying wages or remuneration | 0005| for services other than agricultural services; | 0006| (2) any individual or type of organization | 0007| that acquired the trade or business or substantially all of | 0008| the assets thereof, of an employing unit ~~[which]~~ that at | 0009| the time of ~~[such]~~ the acquisition was an employer subject | 0010| to the Unemployment Compensation Law; provided that where such | 0011| an acquisition takes place, the secretary may postpone | 0012| activating the separate account pursuant to Subsection A of | 0013| Section 51-1-11 NMSA 1978 until such time as the successor | 0014| employer has employment as defined in Subsection F of this | 0015| section; | 0016| (3) any employing unit ~~[which]~~ that | 0017| acquired all or part of the organization, trade, business or | 0018| assets of another employing unit and ~~[which]~~ that, if | 0019| treated as a single unit with such other employing unit or | 0020| part thereof, would be an employer under Paragraph (1) of this | 0021| subsection; | 0022| (4) any employing unit not an employer by | 0023| reason of any other paragraph of this subsection: | 0024| (a) for which, within either the | 0025| current or preceding calendar year, service is or was | - 56 - 0001| performed with respect to which such employing unit is liable | 0002| for any federal tax against which credit may be taken for | 0003| contributions required to be paid into a state unemployment | 0004| fund; or | 0005| (b) which, as a condition for approval | 0006| of the Unemployment Compensation Law for full tax credit | 0007| against the tax imposed by the Federal Unemployment Tax Act, | 0008| is required, pursuant to such act, to be an "employer" under | 0009| the Unemployment Compensation Law; | 0010| (5) any employing unit ~~[which]~~ that, | 0011| having become an employer under Paragraph (1), (2), (3) or (4) | 0012| of this subsection, has not, under Section 51-1-18 NMSA 1978, | 0013| ceased to be an employer subject to the Unemployment | 0014| Compensation Law; | 0015| (6) for the effective period of its election | 0016| pursuant to Section 51-1-18 NMSA 1978, any other employing | 0017| unit ~~[which]~~ that has elected to become fully subject to | 0018| the Unemployment Compensation Law; and | 0019| (7) any employing unit for which any services | 0020| performed in its employ are deemed to be performed in this | 0021| state pursuant to an election under an arrangement entered | 0022| into in accordance with Subsection A of Section 51-1-50 NMSA | 0023| 1978; | 0024| F. "employment" means: | 0025| (1) any service, including service in | - 57 - 0001| interstate commerce, performed for wages or under any contract | 0002| of hire, written or oral, express or implied; | 0003| (2) ~~[and includes]~~ an individual's entire | 0004| service, performed within or both within and without this | 0005| state if: | 0006| (a) the service is primarily localized | 0007| in this state with services performed outside the state being | 0008| only incidental thereto; or | 0009| (b) the service is not localized in any | 0010| state but some of the service is performed in this state and: | 0011| 1) the base of operations or, if there is no base of | 0012| operations, the place from which such service is directed or | 0013| controlled, is in this state; or 2) the base of operations or | 0014| place from which such service is directed or controlled is not | 0015| in any state in which some part of the service is performed | 0016| but the individual's residence is in this state; | 0017| (3) services performed within this state but | 0018| not covered under Paragraph (2) of this subsection if | 0019| contributions or payments in lieu of contributions are not | 0020| required and paid with respect to such services under an | 0021| unemployment compensation law of any other state, the federal | 0022| government or Canada; | 0023| (4) services covered by an election pursuant | 0024| to Section 51-1-18 NMSA 1978 and services covered by an | 0025| election duly approved by the secretary in accordance with an | - 58 - 0001| arrangement pursuant to Paragraph (1) of Subsection A of | 0002| Section 51-1-50 NMSA 1978 shall be deemed to be employment | 0003| during the effective period of such election; | 0004| (5) services performed by an individual for | 0005| an employer for wages or other remuneration unless and until | 0006| it is established by a preponderance of evidence that: | 0007| (a) such individual has been and will | 0008| continue to be free from control or direction over the | 0009| performance of such services both under his contract of | 0010| service and in fact; | 0011| (b) such service is either outside the | 0012| usual course of business for which such service is performed | 0013| or that such service is performed outside of all the places of | 0014| business of the enterprise for which such service is | 0015| performed; and | 0016| (c) such individual is customarily | 0017| engaged in an independently established trade, occupation, | 0018| profession or business of the same nature as that involved in | 0019| the contract of service; | 0020| (6) service performed after December 31, 1977 | 0021| by an individual in agricultural labor as defined in | 0022| Subsection Q of this section if: | 0023| (a) such service is performed for an | 0024| employing unit ~~[which]~~ that: 1) paid remuneration in cash | 0025| of twenty thousand dollars ($20,000) or more to individuals in | - 59 - 0001| such employment during any calendar quarter in either the | 0002| current or the preceding calendar year; or 2) employed in | 0003| agricultural labor ten or more individuals for some portion of | 0004| a day in each of twenty different calendar weeks in either the | 0005| current or preceding calendar year, whether or not such weeks | 0006| were consecutive, and regardless of whether such individuals | 0007| were employed at the same time; | 0008| (b) such service is not performed | 0009| before January 1, 1980 by an individual who is an alien | 0010| admitted to the United States to perform service in | 0011| agricultural labor pursuant to Sections 214(c) and 101(15)(H) | 0012| of the Immigration and Nationality Act; and | 0013| (c) for purposes of this paragraph, any | 0014| individual who is a member of a crew furnished by a crew | 0015| leader to perform service in agricultural labor for a farm | 0016| operator or other person shall be treated as an employee of | 0017| such crew leader: 1) if such crew leader meets the | 0018| requirements of a crew leader as defined in Subsection L of | 0019| this section; or 2) substantially all the members of such crew | 0020| operate or maintain mechanized agricultural equipment | 0021| ~~[which]~~ that is provided by the crew leader; and 3) the | 0022| individuals performing such services are not, by written | 0023| agreement or in fact, within the meaning of Paragraph (5) of | 0024| this subsection, performing services in employment for the | 0025| farm operator or other person; | - 60 - 0001| (7) service performed after December 31, 1977 | 0002| by an individual in domestic service in a private home, local | 0003| college club or local chapter of a college fraternity or | 0004| sorority for a person or organization that paid cash | 0005| remuneration of one thousand dollars ($1,000) in any calendar | 0006| quarter in the current or preceding calendar year to | 0007| individuals performing such services; | 0008| (8) service performed after December 31, 1971 | 0009| by an individual in the employ of a religious, charitable, | 0010| educational or other organization but only if the following | 0011| conditions are met: | 0012| (a) the service is excluded from | 0013| "employment" as defined in the Federal Unemployment Tax Act | 0014| solely by reason of Section 3306(c)(8) of that act; and | 0015| (b) the organization meets the | 0016| requirements of "employer" as provided in Subparagraph (a) of | 0017| Paragraph (1) of Subsection E of this section; | 0018| (9) service of an individual who is a citizen | 0019| of the United States, performed outside the United States, | 0020| except in Canada, after December 31, 1971 in the employ of an | 0021| American employer (other than service ~~[which]~~ that is | 0022| deemed "employment" under the provisions of Paragraph (2) of | 0023| this subsection or the parallel provisions of another state's | 0024| law), if: | 0025| (a) the employer's principal place of | - 61 - 0001| business in the United States is located in this state; | 0002| (b) the employer has no place of | 0003| business in the United States, but: 1) the employer is an | 0004| individual who is a resident of this state; 2) the employer is | 0005| a corporation ~~[which is]~~ organized under the laws of this | 0006| state; or 3) the employer is a partnership or a trust and the | 0007| number of the partners or trustees who are residents of this | 0008| state is greater than the number who are residents of any one | 0009| other state; or | 0010| (c) none of the criteria of | 0011| Subparagraphs (a) and (b) of this paragraph are met, but the | 0012| employer has elected coverage in this state or, the employer | 0013| having failed to elect coverage in any state, the individual | 0014| has filed a claim for benefits, based on such service, under | 0015| the law of this state. | 0016| "American employer" for purposes of this paragraph means | 0017| a person who is: 1) an individual who is a resident of the | 0018| United States; 2) a partnership if two-thirds or more of the | 0019| partners are residents of the United States; 3) a trust if all | 0020| of the trustees are residents of the United States; or 4) a | 0021| corporation organized under the laws of the United States or | 0022| of any state. For the purposes of this paragraph, "United | 0023| States" includes the United States, the District of Columbia, | 0024| the commonwealth of Puerto Rico and the Virgin Islands; | 0025| (10) notwithstanding any other provisions of | - 62 - 0001| this subsection, service with respect to which a tax is | 0002| required to be paid under any federal law imposing a tax | 0003| against which credit may be taken for contributions required | 0004| to be paid into a state unemployment fund or which as a | 0005| condition for full tax credit against the tax imposed by the | 0006| Federal Unemployment Tax Act is required to be covered under | 0007| the Unemployment Compensation Law; | 0008| (11) "employment" ~~[shall]~~ does not | 0009| include: | 0010| (a) service performed in the employ of: | 0011| 1) a church or convention or association of churches; or 2) an | 0012| organization ~~[which]~~ that is operated primarily for | 0013| religious purposes and ~~[which]~~ that is operated, | 0014| supervised, controlled or principally supported by a church or | 0015| convention or association of churches; | 0016| (b) service performed by a duly | 0017| ordained, commissioned or licensed minister of a church in the | 0018| exercise of his ministry or by a member of a religious order | 0019| in the exercise of duties required by such order; | 0020| (c) service performed by an individual | 0021| in the employ of his son, daughter or spouse, and service | 0022| performed by a child under the age of majority in the employ | 0023| of his father or mother; | 0024| (d) service performed in the employ of | 0025| the United States government or an instrumentality of the | - 63 - 0001| United States immune under the constitution of the United | 0002| States from the contributions imposed by the Unemployment | 0003| Compensation Law except that to the extent that the congress | 0004| of the United States shall permit states to require any | 0005| instrumentalities of the United States to make payments into | 0006| an unemployment fund under a state unemployment compensation | 0007| act, all of the provisions of the Unemployment Compensation | 0008| Law shall be applicable to such instrumentalities, and to | 0009| service performed for such instrumentalities in the same | 0010| manner, to the same extent and on the same terms as to all | 0011| other employers, employing units, individuals and services; | 0012| provided, that if this state shall not be certified for any | 0013| year by the secretary of labor of the United States under | 0014| Section 3304 of the federal Internal Revenue Code (26 U.S.C. | 0015| Section 3304), the payments required of such instrumentalities | 0016| with respect to such year shall be refunded by the department | 0017| from the fund in the same manner and within the same period as | 0018| is provided in Subsection D of Section 51-1-36 NMSA 1978 with | 0019| respect to contributions erroneously collected; | 0020| (e) service performed in a facility | 0021| conducted for the purpose of carrying out a program of | 0022| rehabilitation for individuals whose earning capacity is | 0023| impaired by age or physical or mental deficiency or injury or | 0024| providing remunerative work for individuals who because of | 0025| their impaired physical or mental capacity cannot be readily | - 64 - 0001| absorbed in the competitive labor market, by an individual | 0002| receiving such rehabilitation or remunerative work; | 0003| (f) service with respect to which | 0004| unemployment compensation is payable under an unemployment | 0005| compensation system established by an act of congress; | 0006| (g) service performed in the employ of | 0007| a foreign government, including service as a consular or other | 0008| officer or employee or a nondiplomatic representative; | 0009| (h) service performed by an individual | 0010| for a person as an insurance agent or as an insurance | 0011| solicitor, if all such service performed by such individual | 0012| for such person is performed for remuneration solely by way of | 0013| commission; | 0014| (i) service performed by an individual | 0015| under the age of eighteen in the delivery or distribution of | 0016| newspapers or shopping news, not including delivery or | 0017| distribution to any point for subsequent delivery or | 0018| distribution; | 0019| (j) service covered by an election duly | 0020| approved by the agency charged with the administration of any | 0021| other state or federal unemployment compensation law, in | 0022| accordance with an arrangement pursuant to Paragraph (1) of | 0023| Subsection A of Section 51-1-50 NMSA 1978 during the effective | 0024| period of such election; | 0025| (k) service performed, as part of an | - 65 - 0001| unemployment work-relief or work-training program assisted or | 0002| financed in whole or part by any federal agency or an agency | 0003| of a state or political subdivision thereof, by an individual | 0004| receiving such work relief or work training; | 0005| (l) service performed by an individual | 0006| who is enrolled at a nonprofit or public educational | 0007| institution ~~[which]~~ that normally maintains a regular | 0008| faculty and curriculum and normally has a regularly organized | 0009| body of students in attendance at the place where its | 0010| educational activities are carried on as a student in a | 0011| full-time program, taken for credit at ~~[such]~~ the | 0012| institution ~~[which]~~ that combines academic instruction | 0013| with work experience, if the service is an integral part of | 0014| such program and the institution has so certified to the | 0015| employer, except that this subparagraph shall not apply to | 0016| service performed in a program established for or on behalf of | 0017| an employer or group of employers; | 0018| (m) service performed in the employ of | 0019| a hospital, if the service is performed by a patient of the | 0020| hospital, or services performed by an inmate of a custodial or | 0021| penal institution for a governmental entity or nonprofit | 0022| organization; | 0023| (n) service performed by real estate | 0024| salesmen for others when the services are performed for | 0025| remuneration solely by way of commission; | - 66 - 0001| (o) service performed in the employ of | 0002| a school, college or university if such service is performed | 0003| by a student who is enrolled and is regularly attending | 0004| classes at such school, college or university; | 0005| (p) service performed by an individual | 0006| for a fixed or contract fee officiating at a sporting event | 0007| ~~[which]~~ that is conducted by or under the auspices of a | 0008| nonprofit or governmental entity if that person is not | 0009| otherwise an employee of the entity conducting the sporting | 0010| event; | 0011| (q) service performed for a private, | 0012| for-profit person or entity by an individual as a product | 0013| demonstrator or product merchandiser if the service is | 0014| performed pursuant to a written contract between that | 0015| individual and a person or entity whose principal business is | 0016| obtaining the services of product demonstrators and product | 0017| merchandisers for third parties, for demonstration and | 0018| merchandising purposes and the individual: 1) is compensated | 0019| for each job or the compensation is based on factors related | 0020| to the work performed; 2) provides the equipment used to | 0021| perform the service, unless special equipment is required and | 0022| provided by the manufacturer through an agency; 3) is | 0023| responsible for completion of a specific job and for any | 0024| failure to complete the job; 4) pays all expenses, and the | 0025| opportunity for profit or loss rests solely with the | - 67 - 0001| individual; and 5) is responsible for operating costs, fuel, | 0002| repairs and motor vehicle insurance. For the purpose of this | 0003| subparagraph, "product demonstrator" means an individual who, | 0004| on a temporary, part-time basis, demonstrates or gives away | 0005| samples of a food or other product as part of an advertising | 0006| or sales promotion for the product and who is not otherwise | 0007| employed directly by the manufacturer, distributor or | 0008| retailer, and "product merchandiser" means an individual who, | 0009| on a temporary, part-time basis builds or resets a product | 0010| display and who is not otherwise directly employed by the | 0011| manufacturer, distributor or retailer; or | 0012| (r) service performed for a private | 0013| for-profit person or entity by an individual as a landman if | 0014| substantially all remuneration paid in cash or otherwise for | 0015| the performance of the services is directly related to the | 0016| completion by the individual of the specific tasks contracted | 0017| for rather than to the number of hours worked by the | 0018| individual. For the purposes of this subparagraph, "landman" | 0019| means a land professional who has been engaged primarily in: | 0020| 1) negotiating for the acquisition or divestiture of mineral | 0021| rights; 2) negotiating business agreements that provide for | 0022| the exploration for or development of minerals; 3) determining | 0023| ownership of minerals through the research of public and | 0024| private records; and 4) reviewing the status of title, curing | 0025| title defects and otherwise reducing title risk associated | - 68 - 0001| with ownership of minerals; managing rights or obligations | 0002| derived from ownership of interests and minerals; or utilizing | 0003| or pooling of interest in minerals; and | 0004| (12) for the purposes of this subsection, if | 0005| the services performed during one-half or more of any pay | 0006| period by an individual for the person employing him | 0007| constitute employment, all the services of such individual for | 0008| such period shall be deemed to be employment but, if the | 0009| services performed during more than one-half of any such pay | 0010| period by an individual for the person employing him do not | 0011| constitute employment, then none of the services of such | 0012| individual for such period shall be deemed to be employment. | 0013| As used in this paragraph, the term "pay period" means a | 0014| period, of not more than thirty-one consecutive days, for | 0015| which a payment of remuneration is ordinarily made to the | 0016| individual by the person employing him. This paragraph shall | 0017| not be applicable with respect to services performed in a pay | 0018| period by an individual for the person employing him where any | 0019| of such service is excepted by Subparagraph (f) of Paragraph | 0020| (11) of this subsection; | 0021| G. "employment office" means a free public | 0022| employment office, or branch thereof, operated by this state | 0023| or maintained as a part of a state-controlled system of public | 0024| employment offices; | 0025| H. "fund" means the unemployment compensation fund | - 69 - 0001| established by the Unemployment Compensation Law to which all | 0002| contributions and payments in lieu of contributions required | 0003| under the Unemployment Compensation Law and from which all | 0004| benefits provided under the Unemployment Compensation Law | 0005| shall be paid; | 0006| I. "unemployment" means, with respect to an | 0007| individual, any week during which he performs no services and | 0008| with respect to which no wages are payable to him and during | 0009| which he is not engaged in self-employment or receives an | 0010| award of back pay for loss of employment. The secretary shall | 0011| prescribe by regulation what constitutes part-time and | 0012| intermittent employment, partial employment and the conditions | 0013| under which individuals engaged in such employment are | 0014| eligible for partial unemployment benefits; | 0015| J. "state", when used in reference to any state | 0016| other than New Mexico, includes, in addition to the states of | 0017| the United States, the District of Columbia, the commonwealth | 0018| of Puerto Rico and the Virgin Islands; | 0019| K. "unemployment compensation administration fund" | 0020| means the fund established by Subsection A of Section 51-1-34 | 0021| NMSA 1978 from which administrative expenses under the | 0022| Unemployment Compensation Law shall be paid. "Employment | 0023| security department fund" means the fund established by | 0024| Subsection B of Section 51-1-34 NMSA 1978 from which certain | 0025| administrative expenses under the Unemployment Compensation | - 70 - 0001| Law shall be paid; | 0002| L. "crew leader" means a person who: | 0003| (1) holds a valid certificate of registration | 0004| as a crew leader or farm labor contractor under the Migrant | 0005| and Seasonal Agricultural Worker Protection Act; | 0006| (2) furnishes individuals to perform services | 0007| in agricultural labor for any other person; | 0008| (3) pays, either on his own behalf or on | 0009| behalf of such other person, the individuals so furnished by | 0010| him for service in agricultural labor; and | 0011| (4) has not entered into a written agreement | 0012| with the other person for whom he furnishes individuals in | 0013| agricultural labor that such individuals will be the employees | 0014| of the other person; | 0015| M. "week" means such period of seven consecutive | 0016| days, as the secretary may by regulation prescribe. The | 0017| secretary may by regulation prescribe that a week shall be | 0018| deemed to be "in", "within" or "during" ~~[that]~~ the benefit | 0019| year ~~[which]~~ that includes the greater part of such week; | 0020| N. "calendar quarter" means the period of three | 0021| consecutive calendar months ending on March 31, June 30, | 0022| September 30 or December 31; | 0023| O. "insured work" means services performed for | 0024| employers who are covered under the Unemployment Compensation | 0025| Law; | - 71 - 0001| P. "benefit year" with respect to any individual | 0002| means the one-year period beginning with the first day of the | 0003| first week of unemployment with respect to which the | 0004| individual first files a claim for benefits in accordance with | 0005| Subsection A of Section 51-1-8 NMSA 1978 and thereafter the | 0006| one-year period beginning with the first day of the first week | 0007| of unemployment with respect to which the individual next | 0008| files such a claim for benefits after the termination of his | 0009| last preceding benefit year; provided that at the time of | 0010| filing such a claim the individual has been paid the wages for | 0011| insured work required under Paragraph (5) of Subsection A of | 0012| Section 51-1-5 NMSA 1978; | 0013| Q. "agricultural labor" includes all services | 0014| performed: | 0015| (1) on a farm, in the employ of any person, | 0016| in connection with cultivating the soil or in connection with | 0017| raising or harvesting any agricultural or horticultural | 0018| commodity, including the raising, shearing, feeding, caring | 0019| for, training and management of livestock, bees, poultry and | 0020| fur-bearing animals and wildlife; | 0021| (2) in the employ of the owner or tenant or | 0022| other operator of a farm, in connection with the operation, | 0023| management, conservation or maintenance of such farm and its | 0024| tools and equipment, if the major part of such service is | 0025| performed on a farm; | - 72 - 0001| (3) in connection with the operation or | 0002| maintenance of ditches, canals, reservoirs or waterways used | 0003| exclusively for supplying and storing water for farming | 0004| purposes when such ditches, canals, reservoirs or waterways | 0005| are owned and operated by the farmers using the water stored | 0006| or carried therein; and | 0007| (4) in handling, planting, drying, packing, | 0008| packaging, processing, freezing, grading, storing or delivery | 0009| to storage or to market or to a carrier for transportation to | 0010| market any agricultural or horticultural commodity but only if | 0011| such service is performed as an incident to ordinary farming | 0012| operations. The provisions of this paragraph shall not be | 0013| deemed to be applicable with respect to service performed in | 0014| connection with commercial canning or commercial freezing or | 0015| in connection with any agricultural or horticultural commodity | 0016| after its delivery to a terminal market for distribution for | 0017| consumption. | 0018| As used in this subsection, the term "farm" includes | 0019| stock, dairy, poultry, fruit, fur-bearing animal and truck | 0020| farms, plantations, ranches, nurseries, greenhouses, ranges | 0021| and orchards; | 0022| R. "payments in lieu of contributions" means the | 0023| money payments made into the fund by an employer pursuant to | 0024| the provisions of Subsection A of Section 51-1-13 NMSA 1978; | 0025| S. "department" means the labor department; and | - 73 - 0001| T. "wages" means all remuneration for services, | 0002| including commissions and bonuses and the cash value of all | 0003| remuneration in any medium other than cash. The reasonable | 0004| cash value of remuneration in any medium other than cash shall | 0005| be established and determined in accordance with regulations | 0006| prescribed by the secretary; provided that the term "wages" | 0007| shall not include: | 0008| (1) subsequent to December 31, 1977, that | 0009| part of the remuneration in excess of the base wage as | 0010| determined by the secretary for each calendar year. The base | 0011| wage upon which contribution shall be paid during any calendar | 0012| year shall be ~~[sixty-five]~~ sixty percent of the state's | 0013| average annual earnings computed by the ~~[department]~~ | 0014| division by dividing total wages reported to the | 0015| ~~[department]~~ division by contributing employers for the | 0016| second preceding calendar year before the calendar year the | 0017| computed base wage becomes effective by the average annual | 0018| employment reported by contributing employers for the same | 0019| period rounded to the next higher multiple of one hundred | 0020| dollars ($100); provided that the base wage so computed for | 0021| any calendar year shall not be less than seven thousand | 0022| dollars ($7,000). Wages paid by an employer to an individual | 0023| in his employ during any calendar year in excess of the base | 0024| wage in effect for that calendar year shall be reported to the | 0025| department but shall be exempt from the payment of | - 74 - 0001| contributions unless such wages paid in excess of the base | 0002| wage become subject to tax under a federal law imposing a tax | 0003| against which credit may be taken for contributions required | 0004| to be paid into a state unemployment fund; | 0005| (2) the amount of any payment with respect to | 0006| services performed after June 30, 1941 to or on behalf of an | 0007| individual in its employ under a plan or system established by | 0008| an employing unit ~~[which]~~ that makes provision for | 0009| individuals in its employ generally or for a class or classes | 0010| of such individuals, including any amount paid by an employing | 0011| unit for insurance or annuities, or into a fund, to provide | 0012| for any such payment, on account of: | 0013| (a) retirement if such payments are | 0014| made by an employer to or on behalf of any employee under a | 0015| simplified employee pension plan that provides for payments by | 0016| an employer in addition to the salary or other remuneration | 0017| normally payable to such employee or class of such employees | 0018| and does not include any payments ~~[which]~~ that represent | 0019| deferred compensation or other reduction of an employee's | 0020| normal taxable wages or remuneration or any payments made to a | 0021| third party on behalf of an employee as part of an agreement | 0022| of deferred remuneration; | 0023| (b) sickness or accident disability if | 0024| such payments are received under a workers' compensation or | 0025| occupational disease disablement law; | - 75 - 0001| (c) medical and hospitalization | 0002| expenses in connection with sickness or accident disability; | 0003| or | 0004| (d) death; | 0005| provided the individual in its employ has not the option to | 0006| receive, instead of provision for such death benefit, any part | 0007| of such payment, or, if such death benefit is insured, any | 0008| part of the premiums or contributions to premiums paid by his | 0009| employing unit and has not the right under the provisions of | 0010| the plan or system or policy of insurance providing for such | 0011| death benefit to assign such benefit, or to receive a cash | 0012| consideration in lieu of such benefit either upon his | 0013| withdrawal from the plan or system providing for such benefit | 0014| or upon termination of such plan or system or policy of | 0015| insurance or of his service with such employing unit; | 0016| (3) remuneration for agricultural labor paid | 0017| in any medium other than cash; | 0018| (4) any payment made to, or on behalf of, an | 0019| employee or an employee's beneficiary under a cafeteria plan | 0020| within the meaning of Section 125 of the federal Internal | 0021| Revenue Code of 1986; | 0022| (5) any payment made, or benefit furnished to | 0023| or for the benefit of an employee if at the time of such | 0024| payment or such furnishing it is reasonable to believe that | 0025| the employee will be able to exclude such payment or benefit | - 76 - 0001| from income under Section 129 of the federal Internal Revenue | 0002| Code of 1986; ~~[or]~~ | 0003| (6) any payment made by an employer to a | 0004| survivor or the estate of a former employee after the calendar | 0005| year in which such employee died; | 0006| (7) any payment made to, or on behalf of, an | 0007| employee or his beneficiary under an arrangement to which | 0008| Section 408(p) of the federal Internal Revenue code of 1986 | 0009| applies, other than any elective contributions under Paragraph | 0010| (2)(A)(i) of that section; | 0011| (8) any payment made to or for the benefit of | 0012| an employee if at the time of such payment it is reasonable to | 0013| believe that the employee will be able to exclude such payment | 0014| from income under Section 106 of the federal Internal Revenue | 0015| Code of 1986; or | 0016| (9) the value of any meals or lodging | 0017| furnished by or on behalf of the employer if at the time such | 0018| benefit is provided it is reasonable to believe that the | 0019| employee will be able to exclude such items from income under | 0020| Section 119 of the federal Internal Revenue Code of 1986." | 0021| Section 10. EFFECTIVE DATE.--The effective date of the | 0022| provisions of this act is July 1, 1998. | 0023| |