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AN ACT

RELATING TO UNEMPLOYMENT COMPENSATION; AMENDING PROVISIONS OF

THE UNEMPLOYMENT COMPENSATION LAW TO INCREASE AND EXTEND

BENEFITS, DECREASE EMPLOYERS' CONTRIBUTIONS AND ELIMINATE

CERTAIN RESTRICTIONS ON ELIGIBILITY FOR BENEFITS; DECLARING AN

EMERGENCY.

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

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

Chapter 47, Section 8) is amended to read:

"51-1-4. MONETARY COMPUTATION OF BENEFITS--PAYMENT

GENERALLY.--

A. All benefits provided herein are payable from

the unemployment compensation fund. All benefits shall be

paid in accordance with rules prescribed by the secretary

through employment offices or other agencies as the secretary

approves by general rule.

B. Weekly benefits shall be as follows:

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

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

average weekly wage for insured work paid to the individual in

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

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

than ten percent or more than fifty-two and one-half percent

of the state's average weekly wage for all insured work. The

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state's average weekly wage shall be computed from all wages

reported to the department from employing units in accordance

with rules of the secretary for the period ending June 30 of

each calendar year divided by the total number of covered

employees divided by fifty-two, effective for the benefit

years commencing on or after the first Sunday of the following

calendar year. An individual is not eligible to receive

benefits unless the individual has wages in at least two

quarters of that individual's base period. For the purposes

of this subsection, "total wages" means all remuneration for

insured work, including commissions and bonuses and the cash

value of all remuneration in a medium other than cash;

(2) an eligible individual who is unemployed

in any week during which the individual is in a continued

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

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

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

self-employment, payable to the individual with respect to

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

weekly benefit amount. For purposes of this subsection only,

"wages" includes all remuneration for services actually

performed in a week for which benefits are claimed, vacation

pay for a period for which the individual has a definite

return-to-work date, wages in lieu of notice and back pay for

loss of employment but does not include payments through a

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court for time spent in jury service;

(3) notwithstanding any other provision of

this section, an eligible individual who, pursuant to a plan

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

individual, is receiving a governmental or other pension,

retirement pay, annuity or any other similar periodic payment

that is based on the previous work of the individual and who

is unemployed with respect to any week ending subsequent to

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

accordance with rules prescribed by the secretary,

compensation equal to the individual's weekly benefit amount

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

pension, retirement pay, annuity or other similar periodic

payment that exceeds the percentage contributed to the plan by

the eligible individual. The maximum benefit amount payable

to the eligible individual shall be an amount not more than

twenty-six times the individual's reduced weekly benefit

amount. If payments referred to in this section are being

received by an individual under the federal Social Security

Act, the division shall take into account the individual's

contribution and make no reduction in the weekly benefit

amount;

(4) in the case of a lump-sum payment of a

pension, retirement or retired pay, annuity or other similar

payment by a base-period employer that is based on the

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previous work of the individual, the payment shall be

allocated, in accordance with rules prescribed by the

secretary, and shall reduce the amount of unemployment

compensation paid, but not below zero, in accordance with

Paragraph (3) of this subsection; and

(5) the retroactive payment of a pension,

retirement or retired pay, annuity or any other similar

periodic payment as provided in Paragraphs (3) and (4) of this

subsection attributable to weeks during which an individual

has claimed or has been paid unemployment compensation shall

be allocated to those weeks and shall reduce the amount of

unemployment compensation for those weeks, but not below zero,

by an amount equal to the prorated amount of the pension. Any

overpayment of unemployment compensation benefits resulting

from the application of the provisions of this paragraph shall

be recovered from the claimant in accordance with the

provisions of Section 51-1-38 NMSA 1978.

C. An individual otherwise eligible for benefits

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

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

of fifteen dollars ($15.00) for each unemancipated child, up

to a maximum of four and subject to the maximum stated in

Subsection D of this section, of the individual who is in fact

dependent upon and wholly or mainly supported by the

individual and is:

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(1) under the age of eighteen;

(2) under the age of eighteen and in the

individual's custody pending the adjudication of a petition

filed by the individual for the adoption of the child in a

court of competent jurisdiction; or

(3) under the age of eighteen and for whom

the individual is under a decree or order from a court of

competent jurisdiction required to contribute to the child's

support and for whom no other person is receiving allowances

under the Unemployment Compensation Law if the child is

domiciled within the United States or its territories or

possessions, the payment to be withheld and paid pursuant to

Section 51-1-37.1 NMSA 1978.

D. Dependency benefits shall not exceed fifty

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

of dependency benefits determined as of the beginning of an

individual's benefit year shall not be reduced for the

duration of the benefit year, but this provision does not

prevent the transfer of dependents' benefits from one spouse

to another in accordance with this subsection. If both the

husband and wife receive benefits with respect to a week of

unemployment, only one of them is entitled to a dependency

allowance with respect to a child. The division shall

prescribe standards as to who may receive a dependency

allowance when both the husband and wife are eligible to

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receive unemployment compensation benefits. Dependency

benefits shall not be paid unless the individual submits

documentation satisfactory to the division establishing the

existence of the claimed dependent. If the provisions of this

subsection are satisfied, an otherwise eligible individual who

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

competent jurisdiction shall be paid dependency benefits.

E. An otherwise eligible individual is entitled

during any benefit year to a total amount of benefits equal to

whichever is the lesser of twenty-six times the individual's

weekly benefit amount, plus any dependency benefit amount

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

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

the individual's base period.

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

this section, if not a multiple of one dollar ($1.00), shall

be rounded to the next lower multiple of one dollar ($1.00).

G. The secretary may prescribe rules to provide

for the payment of benefits that are due and payable to the

legal representative, dependents, relatives or next of kin of

claimants since deceased. These rules need not conform with

the laws governing successions, and the payment shall be

deemed a valid payment to the same extent as if made under a

formal administration of the succession of the claimant.

H. The division, on its own initiative, may

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reconsider a monetary determination whenever it is determined

that an error in computation or identity has occurred or that

wages of the claimant pertinent to such determination but not

considered have been newly discovered or that the benefits

have been allowed or denied on the basis of misrepresentation

of fact, but no redetermination shall be made after one year

from the date of the original monetary determination. Notice

of a redetermination shall be given to all interested parties

and shall be subject to an appeal in the same manner as the

original determination. In the event that an appeal involving

an original monetary determination is pending at the time a

redetermination is issued, the appeal, unless withdrawn, shall

be treated as an appeal from redetermination."

Section 2. Section 51-1-5 NMSA 1978 (being Laws 2003,

Chapter 47, Section 9) is amended to read:

"51-1-5. BENEFIT ELIGIBILITY CONDITIONS.--

A. An unemployed individual shall be eligible to

receive benefits with respect to any week only if the

individual:

(1) has made a claim for benefits with

respect to such week in accordance with such rules as the

secretary may prescribe;

(2) has registered for work at, and

thereafter continued to report at, an employment office in

accordance with such rules as the secretary may prescribe,

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except that the secretary may, by rule, waive or alter either

or both of the requirements of this paragraph as to

individuals attached to regular jobs and as to such other

types of cases or situations with respect to which the

secretary finds that compliance with such requirements would

be oppressive or would be inconsistent with the purposes of

the Unemployment Compensation Law. No such rule shall

conflict with Subsection A of Section 51-1-4 NMSA 1978;

(3) is able to work and is available for

work and is actively seeking permanent full-time work or part-

time work in accordance with Subsection I of Section 51-1-42

NMSA 1978 and in accordance with the terms, conditions and

hours common in the occupation or business in which the

individual is seeking work, except that the secretary may, by

rule, waive this requirement for individuals who are on

temporary layoff status from their regular employment with an

assurance from their employers that the layoff shall not

exceed four weeks or who have an express offer in writing of

substantially full-time work that will begin within a period

not exceeding four weeks;

(4) has been unemployed for a waiting period

of one week. A week shall not be counted as a week of

unemployment for the purposes of this paragraph:

(a) unless it occurs within the benefit

year that includes the week with respect to which the

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individual claims payment of benefits;

(b) if benefits have been paid with

respect thereto; and

(c) unless the individual was eligible

for benefits with respect thereto as provided in this section

and Section 51-1-7 NMSA 1978, except for the requirements of

this subsection and of Subsection D of Section 51-1-7 NMSA

1978;

(5) has been paid wages in at least two

quarters of the individual's base period;

(6) has reported to an office of the

division in accordance with the rules of the secretary for the

purpose of an examination and review of the individual's

availability for and search for work, for employment

counseling, referral and placement and for participation in a

job finding or employability training and development program.

An individual shall not be denied benefits under this section

for any week that the individual is participating in a job

finding or employability training and development program; and

(7) participates in reemployment services,

such as job search assistance services, if the division

determines that the individual is likely to exhaust regular

benefits and need reemployment services pursuant to a

profiling system established by the division, unless the

division determines that:

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(a) the individual has completed such

services; or

(b) there is justifiable cause for the

individual's failure to participate in the services.

B. A benefit year as provided in Section 51-1-4

NMSA 1978 and Subsection P of Section 51-1-42 NMSA 1978 may be

established; provided an individual may not receive benefits

in a benefit year unless, subsequent to the beginning of the

immediately preceding benefit year during which the individual

received benefits, the individual performed service in

"employment", as defined in Subsection F of Section 51-1-42

NMSA 1978, and earned remuneration for such service in an

amount equal to at least five times the individual's weekly

benefit amount.

C. Benefits based on service in employment defined

in Paragraph (8) of Subsection F of Section 51-1-42 and

Section 51-1-43 NMSA 1978 are to be paid in the same amount,

on the same terms and subject to the same conditions as

compensation payable on the basis of other services subject to

the Unemployment Compensation Law; except that:

(1) benefits based on services performed in

an instructional, research or principal administrative

capacity for an educational institution shall not be paid for

any week of unemployment commencing during the period between

two successive academic years or terms or, when an agreement

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provides for a similar period between two regular but not

successive terms, during such period or during a period of

paid sabbatical leave provided for in the individual's

contract, to any individual if the individual performs such

services in the first of such academic years or terms and if

there is a contract or a reasonable assurance that the

individual will perform services in any such capacity for any

educational institution in the second of such academic years

or terms;

(2) benefits based on services performed for

an educational institution other than in an instructional,

research or principal administrative capacity shall not be

paid for any week of unemployment commencing during a period

between two successive academic years or terms if the services

are performed in the first of such academic years or terms and

there is a reasonable assurance that the individual will

perform services for any educational institution in the second

of such academic years or terms. If compensation is denied to

an individual under this paragraph and the individual was not

offered an opportunity to perform such services for the

educational institution for the second of such academic years

or terms, the individual shall be entitled to a retroactive

payment of benefits for each week for which the individual

filed a claim and certified for benefits in accordance with

the rules of the division and for which benefits were denied

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solely by reason of this paragraph;

(3) benefits shall be denied to any

individual for any week that commences during an established

and customary vacation period or holiday recess if the

individual performs any services described in Paragraphs (1)

and (2) of this subsection in the period immediately before

such period of vacation or holiday recess and there is a

reasonable assurance that the individual will perform any such

services in the period immediately following such vacation

period or holiday recess;

(4) benefits shall not be payable on the

basis of services specified in Paragraphs (1) and (2) of this

subsection during the periods specified in Paragraphs (1), (2)

and (3) of this subsection to any individual who performed

such services in or to or on behalf of an educational

institution while in the employ of a state or local

governmental educational service agency or other governmental

entity or nonprofit organization; and

(5) for the purpose of this subsection, to

the extent permitted by federal law, "reasonable assurance"

means a reasonable expectation of employment in a similar

capacity in the second of such academic years or terms based

upon a consideration of all relevant factors, including the

historical pattern of reemployment in such capacity, a

reasonable anticipation that such employment will be available

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and a reasonable notice or understanding that the individual

will be eligible for and offered employment in a similar

capacity.

D. Paragraphs (1), (2), (3), (4) and (5) of

Subsection C of this section shall apply to services performed

for all educational institutions, public or private, for

profit or nonprofit, which are operated in this state or

subject to an agreement for coverage under the Unemployment

Compensation Law of this state, unless otherwise exempt by

law.

E. Notwithstanding any other provisions of this

section or Section 51-1-7 NMSA 1978, no otherwise eligible

individual is to be denied benefits for any week because the

individual is in training or attending school on a full-time

basis with the approval of the division nor is the individual

to be denied benefits by reason of application of provisions

in Paragraph (3) of Subsection A of this section or Paragraph

(3) of Subsection A of Section 51-1-7 NMSA 1978 with respect

to any week in which the individual is in training or

attending school on a full-time basis with the approval of the

division. The secretary shall provide, by rule, standards for

approved training and the conditions for approving training

for claimants, including any training approved or authorized

for approval pursuant to Section 236(a)(1) and (2) of the

Trade Act of 1974, as amended, or required to be approved as a

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condition for certification of the state's Unemployment

Compensation Law by the United States secretary of labor.

F. Notwithstanding any other provisions of this

section, benefits shall not be payable on the basis of

services performed by an alien unless such alien is an

individual who was lawfully admitted for permanent residence

at the time the services were performed, was lawfully present

for the purposes of performing the services or was permanently

residing in the United States under color of law at the time

the services were performed, including an alien who was

lawfully present in the United States as a result of the

application of the provisions of Section 212(d)(5) of the

Immigration and Nationality Act; provided that:

(1) any information required of individuals

applying for benefits to determine their eligibility for

benefits under this subsection shall be uniformly required

from all applicants for benefits; and

(2) an individual shall not be denied

benefits because of the individual's alien status except upon

a preponderance of the evidence.

G. Notwithstanding any other provision of this

section, benefits shall not be paid to any individual on the

basis of any services substantially all of which consist of

participating in sports or athletic events or training or

preparing to so participate for any week that commences during

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the period between two successive sport seasons, or similar

periods, if the individual performed the services in the first

of such seasons, or similar periods, and there is a reasonable

assurance that the individual will perform the services in the

latter of such seasons or similar periods.

H. As used in this subsection, "seasonal ski

employee" means an employee who has not worked for a ski area

operator for more than six consecutive months of the previous

twelve months or nine of the previous twelve months. An

employee of a ski area operator who has worked for a ski area

operator for six consecutive months of the previous twelve

months or nine of the previous twelve months shall not be

considered a seasonal ski employee. The following benefit

eligibility conditions apply to a seasonal ski employee:

(1) except as provided in Paragraphs (2) and

(3) of this subsection, a seasonal ski employee employed by a

ski area operator on a regular seasonal basis shall be

ineligible for a week of unemployment benefits that commences

during a period between two successive ski seasons unless the

individual establishes to the satisfaction of the secretary

that the individual is available for and is making an active

search for permanent full-time work;

(2) a seasonal ski employee who has been

employed by a ski area operator during two successive ski

seasons shall be presumed to be unavailable for permanent new

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work during a period after the second successive ski season

that the individual was employed as a seasonal ski employee;

and

(3) the presumption described in Paragraph

(2) of this subsection shall not arise as to any seasonal ski

employee who has been employed by the same ski area operator

during two successive ski seasons and has resided continuously

for at least twelve successive months and continues to reside

in the county in which the ski area facility is located.

I. Notwithstanding any other provision of this

section, an otherwise eligible individual shall not be denied

benefits for any week by reason of the application of

Paragraph (3) of Subsection A of this section because the

individual is before any court of the United States or any

state pursuant to a lawfully issued summons to appear for jury

duty."

Section 3. Section 51-1-7 NMSA 1978 (being Laws 2003,

Chapter 47, Section 10) is amended to read:

"51-1-7. DISQUALIFICATION FOR BENEFITS.--

A. An individual shall be disqualified for and

shall not be eligible to receive benefits:

(1) if it is determined by the division that

the individual left employment voluntarily without good cause

in connection with the employment. No individual shall

receive benefits until the division has contacted the former

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employer and determined whether the individual left the

employment voluntarily; provided, however, that a person shall

not be denied benefits under this paragraph:

(a) solely on the basis of pregnancy or

the termination of pregnancy; or

(b) because of domestic abuse evidenced

by medical documentation, legal documentation or a sworn

statement from the claimant;

(2) if it is determined by the division that

the individual has been discharged for misconduct connected

with the individual's employment; or

(3) if it is determined by the division that

the individual has failed without good cause either to apply

for available, suitable work when so directed or referred by

the division or to accept suitable work when offered.

B. In determining whether or not any work is

suitable for an individual pursuant to Paragraph (3) of

Subsection A of this section, the division shall consider the

degree of risk involved to the individual's health, safety and

morals, the individual's physical fitness, prior training,

approved training or full-time school attendance, experience,

prior earnings, length of unemployment and prospects for

securing local work in the individual's customary occupation

and the distance of available work from the individual's

residence. Notwithstanding any other provisions of the

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Unemployment Compensation Law, no work shall be deemed

suitable and benefits shall not be denied under the

Unemployment Compensation Law to any otherwise eligible

individual for refusing to accept new work under any of the

following conditions:

(1) if the position offered is vacant due

directly to a strike, lockout or other labor dispute;

(2) if the wages, hours or other conditions

of the work offered are substantially less favorable to the

individual than those prevailing for similar work in the

locality; or

(3) if, as a condition of being employed,

the individual would be required to join a company union or to

resign from or refrain from joining any bona fide labor

organizations.

C. An individual shall be disqualified for, and

shall not be eligible to receive, benefits for any week with

respect to which the division finds that the individual's

unemployment is due to a labor dispute at the factory,

establishment or other premises at which the individual is or

was last employed; provided that this subsection shall not

apply if it is shown to the satisfaction of the division that:

(1) the individual is not participating in

or directly interested in the labor dispute; and

(2) the individual does not belong to a

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grade or class of workers of which, immediately before the

commencement of the labor dispute, there were members employed

at the premises at which the labor dispute occurs, any of whom

are participating in or directly interested in the dispute;

provided that if in any case separate branches of work that

are commonly conducted in separate businesses in separate

premises are conducted in separate departments of the same

premises, each such department shall, for the purposes of this

subsection, be deemed to be a separate factory, establishment

or other premises.

D. An individual shall be disqualified for, and

shall not be eligible to receive, benefits for any week with

respect to which, or a part of which, the individual has

received or is seeking, through any agency other than the

division, unemployment benefits under an unemployment

compensation law of another state or of the United States;

provided that if the appropriate agency of such other state or

of the United States finally determines that the individual is

not entitled to such unemployment benefits, this

disqualification shall not apply.

E. A disqualification pursuant to Paragraph (1) or

(2) of Subsection A of this section shall continue for the

duration of the individual's unemployment and until the

individual has earned wages in bona fide employment other than

self-employment, as provided by rule of the secretary, in an

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amount equivalent to five times the individual's weekly

benefit otherwise payable. A disqualification pursuant to

Paragraph (3) of Subsection A of this section shall include

the week the failure occurred and shall continue for the

duration of the individual's unemployment and until the

individual has earned wages in bona fide employment other than

self-employment, as provided by rule of the secretary, in an

amount equivalent to five times the individual's weekly

benefit amount otherwise payable; provided that no more than

one such disqualification shall be imposed upon an individual

for failure to apply for or accept the same position, or a

similar position, with the same employer, except upon a

determination by the division of disqualification pursuant to

Subsection C of this section.

F. As used in this section:

(1) "domestic abuse" means that term as

defined in Section 40-13-2 NMSA 1978; and

(2) "employment" means employment by the

individual's last employer as defined by rules of the

secretary."

Section 4. Section 51-1-11 NMSA 1978 (being Laws 2003,

Chapter 47, Section 11) is amended to read:

"51-1-11. FUTURE RATES BASED ON BENEFIT EXPERIENCE.--

A. The division shall maintain a separate account

for each contributing employer and shall credit the

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contributing employer's account with all contributions paid by

that employer under the Unemployment Compensation Law.

Nothing in the Unemployment Compensation Law shall be

construed to grant an employer or individuals in the

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

by the employer into the fund.

B. Benefits paid to an individual shall be charged

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

on a pro rata basis according to the proportion of the

individual's total base-period wages received from each

employer, except that no benefits paid to a claimant as

extended benefits under the provisions of Section 51-1-48 NMSA

1978 shall be charged to the account of any base-period

employer who is not on a reimbursable basis and who is not a

governmental entity and, except as the secretary shall by rule

prescribe otherwise, in the case of benefits paid to an

individual who:

(1) left the employ of a base-period

employer who is not on a reimbursable basis voluntarily

without good cause in connection with the individual's

employment;

(2) was discharged from the employment of a

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

misconduct connected with the individual's employment;

(3) is employed part time by a base-period

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employer who is not on a reimbursable basis and who continues

to furnish the individual the same part-time work while the

individual is separated from full-time work for a

nondisqualifying reason; or

(4) received benefits based upon wages

earned from a base-period employer who is not on a

reimbursable basis while attending approved training or school

on a full-time basis under the provisions of Subsection E of

Section 51-1-5 NMSA 1978.

C. The division shall not charge a contributing or

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

benefit amounts that the division can bill to or recover from

the federal government as either regular or extended benefits.

D. The division shall not charge a contributing

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

paid to an individual for dependent allowance or because the

individual to whom benefits are paid:

(1) separated from employment due to

domestic abuse; or

(2) is enrolled in approved training or is

attending school on a full-time basis.

E. All contributions to the fund shall be pooled

and available to pay benefits to any individual entitled

thereto, irrespective of the source of such contributions.

The standard rate of contributions payable by each employer

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shall be five and four-tenths percent.

F. An employer's rate shall not be varied from the

standard rate for any calendar year unless, as of the

computation date for that year, the employer's account has

been chargeable with benefits throughout the preceding thirty-

six months, except that:

(1) the provisions of this subsection shall

not apply to governmental entities;

(2) beginning January 1, 2005, any employing

unit that becomes an employer subject to the payment of

contributions under the Unemployment Compensation Law or has

been an employer subject to the payment of contributions at a

standard rate of two percent through December 31, 2004, shall

be subject to the payment of contributions at the reduced rate

of two percent until, as of the computation date of a

particular year, the employer's account has been chargeable

with benefits throughout the preceding thirty-six months;

(3) any individual, type of organization or

employing unit that acquires all or part of the trade or

business of another employing unit, pursuant to Paragraphs (2)

and (3) of Subsection E of Section 51-1-42 NMSA 1978, that has

a reduced rate of contribution shall be entitled to the

transfer of the reduced rate to the extent permitted under

Subsection H of this section;

(4) an employer that, at the time of

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establishing an account, is in business in another state or

states and that is not currently doing business in New Mexico

may elect, pursuant to Paragraph (5) of this subsection, to

receive a beginning contribution rate of two percent or a

contribution rate based on the current contribution rate

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

whichever is lower, if:

(a) the employer has been in operation

in the other state or states for at least three years

immediately preceding the date of becoming a liable employer

in New Mexico, throughout which an individual in the

employer's employ could have received benefits if eligible;

and

(b) the employer provides the

authenticated account history as defined by rule of the

secretary from information accumulated from operations in the

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

Mexico rate; and

(5) the election authorized in Paragraph (4)

of this subsection shall be made in writing within thirty days

after receiving notice of New Mexico liability and, if not

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

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

the lesser of the computed rate determined by the condition of

the account for the computation date immediately preceding the

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New Mexico liable date, or the reduced rate of two percent;

rates for subsequent years will be determined by the condition

of the account for the computation date.

G. The secretary shall, for the year 1942 and for

each calendar year thereafter, classify employers in

accordance with their actual experience in the payment of

contributions and with respect to benefits charged against

their accounts, with a view of fixing such contribution rates

as will reflect such benefit experience. An employer's rate

for any calendar year shall be determined on the basis of the

employer's record and the condition of the fund as of the

computation date for such calendar year.

An employer may make voluntary payments in addition to

the contributions required under the Unemployment Compensation

Law, which shall be credited to the employer's account in

accordance with department rule. The voluntary payments shall

be included in the employer's account as of the employer's

most recent computation date if they are made on or before the

following March 1. Voluntary payments when accepted from an

employer shall not be refunded in whole or in part.

H. In the case of a transfer of an employing

enterprise, the experience history of the transferred

enterprise as provided in Subsection G of this section shall

be transferred from the predecessor employer to the successor

under the following conditions and in accordance with the

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applicable rules of the secretary:

(1) Definitions:

(a) "employing enterprise" is a

business activity engaged in by a contributing employing unit

in which one or more persons have been employed within the

current or the three preceding calendar quarters;

(b) "predecessor" means the owner and

operator of an employing enterprise immediately prior to the

transfer of such enterprise;

(c) "successor" means any individual or

any type of organization that acquires an employing enterprise

and continues to operate such business entity; and

(d) "experience history" means the

experience rating record and reserve account, including the

actual contributions, benefit charges and payroll experience

of the employing enterprise.

(2) For the purpose of this section, two or

more employers who are parties to or the subject of any

transaction involving the transfer of an employing enterprise

shall be deemed to be a single employer and the experience

history of the employing enterprise shall be transferred to

the successor employer if the successor employer has acquired

by the transaction all of the business enterprises of the

predecessor; provided that:

(a) all contributions, interest and

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penalties due from the predecessor employer have been paid;

(b) notice of the transfer has been

given in accordance with the rules of the secretary within

four years of the transaction transferring the employing

enterprise or the date of the actual transfer of control and

operation of the employing enterprise;

(c) in the case of the transfer of an

employing enterprise, the successor employer must notify the

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

successor employer's first wage and contribution report. If

the successor employer fails to notify the division of the

acquisition within this time limit, the division, when it

receives actual notice, shall effect the transfer of the

experience history and applicable rate of contribution

retroactively to the date of the acquisition, and the

successor shall pay a penalty of fifty dollars ($50.00); and

(d) where the transaction involves only

a merger, consolidation or other form of reorganization

without a substantial change in the ownership and controlling

interest of the business entity, as determined by the

secretary, the limitations on transfers stated in

Subparagraphs (a), (b) and (c) of this paragraph shall not

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

reorganization described in this paragraph shall not be

relieved of liability for any contributions, interest or

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penalties due and owing from the employing enterprise at the

time of the merger, consolidation or other form of

reorganization.

(3) The applicable experience history may be

transferred to the successor in the case of a partial transfer

of an employing enterprise if the successor has acquired one

or more of the several employing enterprises of a predecessor

but not all of the employing enterprises of the predecessor

and each employing enterprise so acquired was operated by the

predecessor as a separate store, factory, shop or other

separate employing enterprise and the predecessor, throughout

the entire period of the contribution with liability

applicable to each enterprise transferred, has maintained and

preserved payroll records that, together with records of

contribution liability and benefit chargeability, can be

separated by the parties from the enterprises retained by the

predecessor to the satisfaction of the secretary or the

secretary's delegate. A partial experience history transfer

will be made only if:

(a) the successor notifies the division

of the acquisition, in writing, not later than the due date of

the successor's first quarterly wage and contribution report

after the effective date of the acquisition;

(b) the successor files an application

provided by the division that contains the endorsement of the

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predecessor within thirty days from the delivery or mailing of

such application by the division to the successor's last known

address; and

(c) the successor files with the

application a Form ES-903A or its equivalent with a schedule

of the name and social security number of and the wages paid

to and the contributions paid for each employee for the three

and one-half year period preceding the computation date as

defined in Subparagraph (d) of Paragraph (3) of Subsection I

of this section through the date of transfer or such lesser

period as the enterprises transferred may have been in

operation. The application and Form ES-903A shall be

supported by the predecessor's permanent employment records,

which shall be available for audit by the division. The

application and Form ES-903A shall be reviewed by the division

and, upon approval, the percentage of the predecessor's

experience history attributable to the enterprises transferred

shall be transferred to the successor. The percentage shall

be obtained by dividing the taxable payrolls of the

transferred enterprises for such three and one-half year

period preceding the date of computation or such lesser period

as the enterprises transferred may have been in operation by

the predecessor's entire payroll.

I. For each calendar year, adjustments of

contribution rates below the standard or reduced rate and

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measures designed to protect the fund are provided in

Paragraphs (1) through (4) of this subsection.

(1) The total assets in the fund and the

total of the last annual payrolls of all employers subject to

contributions as of the computation date for each year shall

be determined. These annual totals are here called "the fund"

and "total payrolls". For each year, the "reserve" of each

employer qualified under Subsection F of this section shall be

fixed by the excess of the employer's total contributions over

total benefit charges computed as a percentage of the

employer's average payroll reported for contributions. The

determination of each employer's annual rate, computed as of

the computation date for each calendar year, shall be made by

matching the employer's reserve as shown in the reserve column

with the corresponding rate in the rate column of the

applicable rate schedule of the table provided in Paragraph

(4) of this subsection.

(2) Each employer's rate for each calendar

year commencing January 1, 1979 or thereafter shall be:

(a) the corresponding rate in Schedule

0 of the table provided in Paragraph (4) of this subsection if

the fund equals at least three and seven-tenths percent of the

total payrolls;

(b) the corresponding rate in Schedule

1 of the table provided in Paragraph (4) of this subsection if

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the fund has dropped to less than three and seven-tenths

percent and not less than three and four-tenths percent of the

total payrolls;

(c) the corresponding rate in Schedule

2 of the table provided in Paragraph (4) of this subsection if

the fund has dropped to less than three and four-tenths

percent but not less than two and seven-tenths percent of the

total payrolls;

(d) the corresponding rate in Schedule

3 of the table provided in Paragraph (4) of this subsection if

the fund has dropped to less than two and seven-tenths percent

and not less than two percent of the total payrolls;

(e) the corresponding rate in Schedule

4 of the table provided in Paragraph (4) of this subsection if

the fund has dropped to less than two percent and not less

than one and one-half percent of the total payrolls;

(f) the corresponding rate in Schedule

5 of the table provided in Paragraph (4) of this subsection if

the fund has dropped to less than one and one-half percent and

not less than one percent of the total payrolls; or

(g) the corresponding rate in Schedule

6 of the table provided in Paragraph (4) of this subsection if

the fund has dropped less than one percent of the total

payrolls.

(3) As used in this section:

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(a) "annual payroll" means the total

amount of remuneration from an employer for employment during

a twelve-month period ending on a computation date, and

"average payroll" means the average of the last three annual

payrolls;

(b) "base-period wages" means the wages

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

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

were determined;

(c) "base-period employers" means the

employers of an individual during the individual's base

period; and

(d) "computation date" for each

calendar year means the close of business on June 30 of the

preceding calendar year.

(4) Table of employer reserves and

contribution rate schedules:

Employer

Contribution Contribution Contribution Contribution

Reserve

Schedule 0 Schedule 1 Schedule 2 Schedule 3

10.0% and over

0.03%

0.05%

0.1%

0.6%

9.0%-9.9%

0.06%

0.1%

0.2%

0.9%

8.0%-8.9%

0.09%

0.2%

0.4%

1.2%

7.0%-7.9%

0.10%

0.4%

0.6%

1.5%

6.0%-6.9%

0.30%

0.6%

0.8%

1.8%

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5.0%-5.9%

0.50%

0.8%

1.1%

2.1%

4.0%-4.9%

0.80%

1.1%

1.4%

2.4%

3.0%-3.9%

1.20%

1.4%

1.7%

2.7%

2.0%-2.9%

1.50%

1.7%

2.0%

3.0%

1.0%-1.9%

1.80%

2.0%

2.4%

3.3%

0.9%-0.0%

2.40%

2.4%

3.3%

3.6%

(-0.1%)-(-0.5%)

3.30%

3.3%

3.6%

3.9%

(-0.5%)-(-1.0%)

4.20%

4.2%

4.2%

4.2%

(-1.0%)-(-2.0%)

5.00%

5.0%

5.0%

5.0%

Under (-2.0%)

5.40%

5.4%

5.4%

5.4%

Employer

Contribution Contribution Contribution

Reserve

Schedule 4

Schedule 5

Schedule 6

10.0% and over

0.9%

1.2%

2.7%

9.0%-9.9%

1.2%

1.5%

2.7%

8.0%-8.9%

1.5%

1.8%

2.7%

7.0%-7.9%

1.8%

2.1%

2.7%

6.0%-6.9%

2.1%

2.4%

2.7%

5.0%-5.9%

2.4%

2.7%

3.0%

4.0%-4.9%

2.7%

3.0%

3.3%

3.0%-3.9%

3.0%

3.3%

3.6%

2.0%-2.9%

3.3%

3.6%

3.9%

1.0%-1.9%

3.6%

3.9%

4.2%

0.9%-0.0%

3.9%

4.2%

4.5%

(-0.1%)-(-0.5%)

4.2%

4.5%

4.8%

(-0.5%)-(-1.0%)

4.5%

4.8%

5.1%

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(-1.0%)-(-2.0%)

5.0%

5.1%

5.3%

Under (-2.0%)

5.4%

5.4%

5.4%.

J. The division shall promptly notify each

employer of the employer's rate of contributions as determined

for any calendar year pursuant to this section. Such

notification shall include the amount determined as the

employer's average payroll, the total of all of the employer's

contributions paid on the employer's behalf and credited to

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

charged to the employer's account for all such years. Such

determination shall become conclusive and binding upon the

employer unless, within thirty days after the mailing of

notice thereof to the employer's last known address or in the

absence of mailing, within thirty days after the delivery of

such notice, the employer files an application for review and

redetermination, setting forth the employer's reason therefor.

The employer shall be granted an opportunity for a fair

hearing in accordance with rules prescribed by the secretary,

but an employer shall not have standing, in any proceeding

involving the employer's rate of contributions or contribution

liability, to contest the chargeability to the employer's

account of any benefits paid in accordance with a

determination, redetermination or decision pursuant to Section

51-1-8 NMSA 1978, except upon the ground that the services on

the basis of which such benefits were found to be chargeable

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did not constitute services performed in employment for the

employer and only in the event that the employer was not a

party to such determination, redetermination or decision, or

to any other proceedings under the Unemployment Compensation

Law in which the character of such services was determined.

The employer shall be promptly notified of the decision on the

employer's application for redetermination, which shall become

final unless, within fifteen days after the mailing of notice

thereof to the employer's last known address or in the absence

of mailing, within fifteen days after the delivery of such

notice, further appeal is initiated pursuant to Subsection D

of Section 51-1-8 NMSA 1978.

K. The division shall provide each contributing

employer, within ninety days of the end of each calendar

quarter, a written determination of benefits chargeable to the

employer's account. Such determination shall become

conclusive and binding upon the employer for all purposes

unless, within thirty days after the mailing of the

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

absence of mailing, within thirty days after the delivery of

such determination, the employer files an application for

review and redetermination, setting forth the employer's

reason therefor. The employer shall be granted an opportunity

for a fair hearing in accordance with rules prescribed by the

secretary, but an employer shall not have standing in any

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proceeding involving the employer's contribution liability to

contest the chargeability to the employer's account of any

benefits paid in accordance with a determination,

redetermination or decision pursuant to Section 51-1-8 NMSA

1978, except upon the ground that the services on the basis of

which such benefits were found to be chargeable did not

constitute services performed in employment for the employer

and only in the event that the employer was not a party to

such determination, redetermination or decision, or to any

other proceedings under the Unemployment Compensation Law in

which the character of such services was determined. The

employer shall be promptly notified of the decision on the

employer's application for redetermination, which shall become

final unless, within fifteen days after the mailing of notice

thereof to the employer's last known address or in the absence

of mailing, within fifteen days after the delivery of such

notice, further appeal is initiated pursuant to Subsection D

of Section 51-1-8 NMSA 1978.

L. The contributions, together with interest and

penalties thereon imposed by the Unemployment Compensation

Law, shall not be assessed nor shall action to collect the

same be commenced more than four years after a report showing

the amount of the contributions was due. In the case of a

false or fraudulent contribution report with intent to evade

contributions or a willful failure to file a report of all

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contributions due, the contributions, together with interest

and penalties thereon, may be assessed or an action to collect

such contributions may be begun at any time. Before the

expiration of such period of limitation, the employer and the

secretary may agree in writing to an extension thereof and the

period so agreed on may be extended by subsequent agreements

in writing. In any case where the assessment has been made

and action to collect has been commenced within four years of

the due date of any contribution, interest or penalty,

including the filing of a warrant of lien by the secretary

pursuant to Section 51-1-36 NMSA 1978, such action shall not

be subject to any period of limitation.

M. The secretary shall correct any error in the

determination of an employer's rate of contribution during the

calendar year to which the erroneous rate applies,

notwithstanding that notification of the employer's rate of

contribution may have been issued and contributions paid

pursuant to the notification. Upon issuance by the division

of a corrected rate of contribution, the employer shall have

the same rights to review and redetermination as provided in

Subsection J of this section.

N. Any interest required to be paid on advances to

this state's unemployment compensation fund under Title 12 of

the Social Security Act shall be paid in a timely manner as

required under Section 1202 of Title 12 of the Social Security

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Act and shall not be paid, directly or indirectly, by the

state from amounts in the state's unemployment compensation

fund."

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

Chapter 47, Section 12) is amended to read:

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

Compensation Law:

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

five completed calendar quarters immediately preceding the

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

period" means for benefit years beginning on or after January

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

in the base period as defined to qualify for benefits pursuant

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

shall be the last four completed calendar quarters immediately

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

that period qualifies the individual for benefits pursuant to

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

(1) wages that fall within the base period of

claims established pursuant to this subsection are not

available for reuse in qualifying for a subsequent benefit

year; and

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

pursuant to the arrangement approved by the federal secretary

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

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the unemployment compensation law of the paying state;

B. "benefits" means the cash unemployment

compensation payments payable to an eligible individual

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

individual's weeks of unemployment;

C. "contributions" means the money payments

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

by an employer on account of having individuals performing

services for the employer;

D. "employing unit" means any individual or type

of organization, including any partnership, association,

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

enterprise, insurance company or corporation, whether domestic

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

successor thereof, household, fraternity or club, the legal

representative of a deceased person or any state or local

government entity to the extent required by law to be covered

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

individuals performing services for it within this state. An

individual performing services for an employing unit that

maintains two or more separate establishments within this

state shall be deemed to be employed by a single employing

unit for all the purposes of the Unemployment Compensation

Law. An individual performing services for a contractor,

subcontractor or agent that is performing work or services for

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

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

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

the employ of the employing unit for all purposes of the

Unemployment Compensation Law unless the contractor,

subcontractor or agent is itself an employer within the

provisions of Subsection E of this section;

E. "employer" includes:

(1) an employing unit that:

(a) unless otherwise provided in this

section, paid for service in employment as defined in

Subsection F of this section wages of four hundred fifty

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

current or preceding calendar year or had in employment, as

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

day in each of twenty different calendar weeks during either

the current or the preceding calendar year, and irrespective

of whether the same individual was in employment in each such

day, at least one individual;

(b) for the purposes of Subparagraph

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

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

deemed one calendar week and the days beginning January 1,

another such week; and

(c) for purposes of defining an

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

or remuneration paid to individuals performing services in

employment in agricultural labor or domestic services as

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

section shall not be taken into account; except that any

employing unit determined to be an employer of agricultural

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

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

so long as the employing unit is paying wages or remuneration

for services other than agricultural services;

(2) any individual or type of organization

that acquired the trade or business or substantially all of

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

the acquisition was an employer subject to the Unemployment

Compensation Law; provided that where such an acquisition

takes place, the secretary may postpone activating the

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

NMSA 1978 until such time as the successor employer has

employment as defined in Subsection F of this section;

(3) an employing unit that acquired all or

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

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

other employing unit or part thereof, would be an employer

under Paragraph (1) of this subsection;

(4) an employing unit not an employer by

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reason of any other paragraph of this subsection:

(a) for which, within either the

current or preceding calendar year, service is or was

performed with respect to which such employing unit is liable

for any federal tax against which credit may be taken for

contributions required to be paid into a state unemployment

fund; or

(b) that, as a condition for approval

of the Unemployment Compensation Law for full tax credit

against the tax imposed by the Federal Unemployment Tax Act,

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

the Unemployment Compensation Law;

(5) an employing unit that, having become an

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

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

to be an employer subject to the Unemployment Compensation

Law;

(6) for the effective period of its election

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

unit that has elected to become fully subject to the

Unemployment Compensation Law;

(7) an employing unit for which any services

performed in its employ are deemed to be performed in this

state pursuant to an election under an arrangement entered

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

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1978; and

(8) an Indian tribe as defined in 26 USCA

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

F. "employment":

(1) means any service, including service in

interstate commerce, performed for wages or under any contract

of hire, written or oral, express or implied;

(2) means an individual's entire service,

performed within or both within and without this state if:

(a) the service is primarily localized

in this state with services performed outside the state being

only incidental thereto; or

(b) the service is not localized in any

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

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

operations, the place from which such service is directed or

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

place from which such service is directed or controlled is not

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

but the individual's residence is in this state;

(3) means services performed within this

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

if contributions or payments in lieu of contributions are not

required and paid with respect to such services under an

unemployment compensation law of any other state, the federal

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government or Canada;

(4) means services covered by an election

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

an election duly approved by the secretary in accordance with

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

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

during the effective period of the election;

(5) means services performed by an individual

for an employer for wages or other remuneration unless and

until it is established by a preponderance of evidence that:

(a) the individual has been and will

continue to be free from control or direction over the

performance of the services both under the individual's

contract of service and in fact;

(b) the service is either outside the

usual course of business for which the service is performed or

that such service is performed outside of all the places of

business of the enterprise for which such service is

performed; and

(c) the individual is customarily

engaged in an independently established trade, occupation,

profession or business of the same nature as that involved in

the contract of service;

(6) means service performed after December

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

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Subsection Q of this section if:

(a) the service is performed for an

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

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

employment during any calendar quarter in either the current

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

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

each of twenty different calendar weeks in either the current

or preceding calendar year, whether or not the weeks were

consecutive, and regardless of whether the individuals were

employed at the same time;

(b) the service is not performed before

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

the United States to perform service in agricultural labor

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

Immigration and Nationality Act; and

(c) for purposes of this paragraph, an

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

leader to perform service in agricultural labor for a farm

operator or other person shall be treated as an employee of

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

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

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

maintain mechanized agricultural equipment that is provided by

the crew leader; and 3) the individuals performing the

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

meaning of Paragraph (5) of this subsection, performing

services in employment for the farm operator or other person;

(7) means service performed after December

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

home, local college club or local chapter of a college

fraternity or sorority for a person or organization that paid

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

calendar quarter in the current or preceding calendar year to

individuals performing such services;

(8) means service performed after December

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

charitable, educational or other organization but only if the

following conditions are met:

(a) the service is excluded from

"employment" as defined in the Federal Unemployment Tax Act

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

(b) the organization meets the

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

Paragraph (1) of Subsection E of this section;

(9) means service of an individual who is a

citizen of the United States, performed outside the United

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

employ of an American employer, other than service that is

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

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this subsection or the parallel provisions of another state's

law, if:

(a) the employer's principal place of

business in the United States is located in this state;

(b) the employer has no place of

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

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

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

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

partners or trustees who are residents of this state is

greater than the number who are residents of any one other

state; or

(c) none of the criteria of

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

employer has elected coverage in this state or, the employer

having failed to elect coverage in any state, the individual

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

the law of this state.

"American employer" for the purposes of this paragraph

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

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

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

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

a corporation organized under the laws of the United States or

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

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

the commonwealth of Puerto Rico and the Virgin Islands;

(10) means, notwithstanding any other

provisions of this subsection, service with respect to which a

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

tax against which credit may be taken for contributions

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

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

Federal Unemployment Tax Act is required to be covered under

the Unemployment Compensation Law;

(11) means service performed in the employ of

an Indian tribe if:

(a) the service is excluded from

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

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

(b) the service is not otherwise

excluded from employment pursuant to the Unemployment

Compensation Law;

(12) does not include:

(a) service performed in the employ of:

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

organization that is operated primarily for religious purposes

and that is operated, supervised, controlled or principally

supported by a church or convention or association of

churches;

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(b) service performed by a duly

ordained, commissioned or licensed minister of a church in the

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

in the exercise of duties required by such order;

(c) service performed by an individual

in the employ of his son, daughter or spouse, and service

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

of his father or mother;

(d) service performed in the employ of

the United States government or an instrumentality of the

United States immune under the constitution of the United

States from the contributions imposed by the Unemployment

Compensation Law except that to the extent that the congress

of the United States shall permit states to require any

instrumentalities of the United States to make payments into

an unemployment fund under a state unemployment compensation

act, all of the provisions of the Unemployment Compensation

Law shall be applicable to such instrumentalities, and to

service performed for such instrumentalities in the same

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

other employers, employing units, individuals and services;

provided that if this state shall not be certified for any

year by the secretary of labor of the United States under

Section 3304 of the federal Internal Revenue Code of 1986,

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

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instrumentalities with respect to such year shall be refunded

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

the same period as is provided in Subsection D of

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

erroneously collected;

(e) service performed in a facility

conducted for the purpose of carrying out a program of

rehabilitation for individuals whose earning capacity is

impaired by age or physical or mental deficiency or injury or

providing remunerative work for individuals who because of

their impaired physical or mental capacity cannot be readily

absorbed in the competitive labor market, by an individual

receiving that rehabilitation or remunerative work;

(f) service with respect to which

unemployment compensation is payable under an unemployment

compensation system established by an act of congress;

(g) service performed in the employ of

a foreign government, including service as a consular or other

officer or employee or a nondiplomatic representative;

(h) service performed by an individual

for a person as an insurance agent or as an insurance

solicitor, if all such service performed by the individual for

the person is performed for remuneration solely by way of

commission;

(i) service performed by an individual

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under the age of eighteen in the delivery or distribution of

newspapers or shopping news, not including delivery or

distribution to any point for subsequent delivery or

distribution;

(j) service covered by an election duly

approved by the agency charged with the administration of any

other state or federal unemployment compensation law, in

accordance with an arrangement pursuant to Paragraph (1) of

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

period of the election;

(k) service performed, as part of an

unemployment work-relief or work-training program assisted or

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

of a state or political subdivision thereof, by an individual

receiving the work relief or work training;

(l) service performed by an individual

who is enrolled at a nonprofit or public educational

institution that normally maintains a regular faculty and

curriculum and normally has a regularly organized body of

students in attendance at the place where its educational

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

taken for credit at the institution that combines academic

instruction with work experience, if the service is an

integral part of such program and the institution has so

certified to the employer, except that this subparagraph shall

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not apply to service performed in a program established for or

on behalf of an employer or group of employers;

(m) service performed in the employ of

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

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

penal institution for any employer;

(n) service performed by real estate

salesmen for others when the services are performed for

remuneration solely by way of commission;

(o) service performed in the employ of

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

a student who is enrolled and is regularly attending classes

at the school, college or university;

(p) service performed by an individual

for a fixed or contract fee officiating at a sporting event

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

governmental entity if that person is not otherwise an

employee of the entity conducting the sporting event;

(q) service performed for a private,

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

demonstrator or product merchandiser if the service is

performed pursuant to a written contract between that

individual and a person or entity whose principal business is

obtaining the services of product demonstrators and product

merchandisers for third parties, for demonstration and

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merchandising purposes and the individual: 1) is compensated

for each job or the compensation is based on factors related

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

perform the service, unless special equipment is required and

provided by the manufacturer through an agency; 3) is

responsible for completion of a specific job and for any

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

opportunity for profit or loss rests solely with the

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

repairs and motor vehicle insurance. For the purpose of this

subparagraph, "product demonstrator" means an individual who,

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

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

or sales promotion for the product and who is not otherwise

employed directly by the manufacturer, distributor or

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

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

display and who is not otherwise directly employed by the

manufacturer, distributor or retailer; or

(r) service performed for a private,

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

substantially all remuneration paid in cash or otherwise for

the performance of the services is directly related to the

completion by the individual of the specific tasks contracted

for rather than to the number of hours worked by the

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

means a land professional who has been engaged primarily in:

1) negotiating for the acquisition or divestiture of mineral

rights; 2) negotiating business agreements that provide for

the exploration for or development of minerals; 3) determining

ownership of minerals through the research of public and

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

title defects and otherwise reducing title risk associated

with ownership of minerals; managing rights or obligations

derived from ownership of interests and minerals; or utilizing

or pooling of interest in minerals; and

(13) for the purposes of this subsection, if

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

period by an individual for the person employing the

individual constitute employment, all the services of the

individual for the period shall be deemed to be employment

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

any such pay period by an individual for the person employing

the individual do not constitute employment, then none of the

services of the individual for the period shall be deemed to

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

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

consecutive days, for which a payment of remuneration is

ordinarily made to the individual by the person employing the

individual. This paragraph shall not be applicable with

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respect to services performed in a pay period by an individual

for the person employing the individual where any of such

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

this subsection;

G. "employment office" means a free public

employment office, or branch thereof, operated by this state

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

employment offices;

H. "fund" means the unemployment compensation fund

established by the Unemployment Compensation Law to which all

contributions and payments in lieu of contributions required

under the Unemployment Compensation Law and from which all

benefits provided under the Unemployment Compensation Law

shall be paid;

I. "unemployment" means, with respect to an

individual, any week during which the individual performs no

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

individual and during which the individual is not engaged in

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

employment. The secretary shall prescribe by rule what

constitutes part-time and intermittent employment, partial

employment and the conditions under which individuals engaged

in such employment are eligible for partial unemployment

benefits, but no individual who is otherwise eligible shall be

deemed ineligible for benefits solely for the reason that the

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

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

least twenty hours per week;

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

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

the United States, the District of Columbia, the commonwealth

of Puerto Rico and the Virgin Islands;

K. "unemployment compensation administration fund"

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

NMSA 1978 from which administrative expenses under the

Unemployment Compensation Law shall be paid. "Employment

security department fund" means the fund established by

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

administrative expenses under the Unemployment Compensation

Law shall be paid;

L. "crew leader" means a person who:

(1) holds a valid certificate of registration

as a crew leader or farm labor contractor under the federal

Migrant and Seasonal Agricultural Worker Protection Act;

(2) furnishes individuals to perform services

in agricultural labor for any other person;

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

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

furnished by the crew leader for service in agricultural

labor; and

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(4) has not entered into a written agreement

with the other person for whom the crew leader furnishes

individuals in agricultural labor that the individuals will be

the employees of the other person;

M. "week" means such period of seven consecutive

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

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

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

greater part of such week;

N. "calendar quarter" means the period of three

consecutive calendar months ending on March 31, June 30,

September 30 or December 31;

O. "insured work" means services performed for

employers who are covered under the Unemployment Compensation

Law;

P. "benefit year" with respect to an individual

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

first week of unemployment with respect to which the

individual first files a claim for benefits in accordance with

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

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

of unemployment with respect to which the individual next

files such a claim for benefits after the termination of the

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

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

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

51-1-5 NMSA 1978;

Q. "agricultural labor" includes all services

performed:

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

connection with cultivating the soil or in connection with

raising or harvesting an agricultural or horticultural

commodity, including the raising, shearing, feeding, caring

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

fur-bearing animals and wildlife;

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

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

management, conservation or maintenance of the farm and its

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

performed on a farm;

(3) in connection with the operation or

maintenance of ditches, canals, reservoirs or waterways used

exclusively for supplying and storing water for farming

purposes when such ditches, canals, reservoirs or waterways

are owned and operated by the farmers using the water stored

or carried therein; and

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

packaging, processing, freezing, grading, storing or delivery

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

market any agricultural or horticultural commodity but only if

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the service is performed as an incident to ordinary farming

operations. The provisions of this paragraph shall not be

deemed to be applicable with respect to service performed in

connection with commercial canning or commercial freezing or

in connection with any agricultural or horticultural commodity

after its delivery to a terminal market for distribution for

consumption.

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

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

farms, plantations, ranches, nurseries, greenhouses, ranges

and orchards;

R. "payments in lieu of contributions" means the

money payments made into the fund by an employer pursuant to

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

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

S. "department" means the labor department; and

T. "wages" means all remuneration for services,

including commissions and bonuses and the cash value of all

remuneration in any medium other than cash. The reasonable

cash value of remuneration in any medium other than cash shall

be established and determined in accordance with rules

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

shall not include:

(1) subsequent to December 31, 1977, that

part of the remuneration in excess of the base wage as

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determined by the secretary for each calendar year. The base

wage upon which contribution shall be paid during any calendar

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

earnings computed by the division by dividing total wages

reported to the division by contributing employers for the

second preceding calendar year before the calendar year the

computed base wage becomes effective by the average annual

employment reported by contributing employers for the same

period rounded to the next higher multiple of one hundred

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

any calendar year shall not be less than seven thousand

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

in his employ during any calendar year in excess of the base

wage in effect for that calendar year shall be reported to the

department but shall be exempt from the payment of

contributions unless such wages paid in excess of the base

wage become subject to tax under a federal law imposing a tax

against which credit may be taken for contributions required

to be paid into a state unemployment fund;

(2) the amount of any payment with respect to

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

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

system established by the employing unit that makes provision

for individuals in its employ generally or for a class or

classes of individuals, including any amount paid by an

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

provide for any payment, on account of:

(a) retirement if the payments are made

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

simplified employee pension plan that provides for payments by

an employer in addition to the salary or other remuneration

normally payable to the employee or class of employees and

does not include any payments that represent deferred

compensation or other reduction of an employee's normal

taxable wages or remuneration or any payments made to a third

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

deferred remuneration;

(b) sickness or accident disability if

the payments are received under a workers' compensation or

occupational disease disablement law;

(c) medical and hospitalization

expenses in connection with sickness or accident disability;

or

(d) death; provided the individual in

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

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

death benefit is insured, any part of the premiums or

contributions to premiums paid by the individual's employing

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

system or policy of insurance providing for the death benefit

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

lieu of the benefit either upon the individual's withdrawal

from the plan or system providing for the benefit or upon

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

the individual's service with the employing unit;

(3) remuneration for agricultural labor paid

in any medium other than cash;

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

employee or an employee's beneficiary under a cafeteria plan

within the meaning of Section 125 of the federal Internal

Revenue Code of 1986;

(5) a payment made, or benefit furnished to

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

payment or such furnishing it is reasonable to believe that

the employee will be able to exclude the payment or benefit

from income under Section 129 of the federal Internal Revenue

Code of 1986;

(6) a payment made by an employer to a

survivor or the estate of a former employee after the calendar

year in which the employee died;

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

employee or the employee's beneficiary under an arrangement to

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

1986 applies, other than any elective contributions under

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

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

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

believe that the employee will be able to exclude the payment

from income under Section 106 of the federal Internal Revenue

Code of 1986; or

(9) the value of any meals or lodging

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

benefit is provided it is reasonable to believe that the

employee will be able to exclude such items from income under

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

Section 6. Section 51-1-4 NMSA 1978 (being Laws 2003,

Chapter 47, Section 8, as amended by Section 1 of this act) is

repealed and a new Section 51-1-4 NMSA 1978 is enacted to

read:

"51-1-4. MONETARY COMPUTATION OF BENEFITS--PAYMENT

GENERALLY.--

A. All benefits provided herein are payable from

the unemployment compensation fund. All benefits shall be

paid in accordance with rules prescribed by the secretary

through employment offices or other agencies as the secretary

approves by general rule.

B. Weekly benefits shall be as follows:

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

is an amount equal to one twenty-sixth of the total wages for

insured work paid to the individual in that quarter of the

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individual's base period in which total wages were highest.

No benefit as so computed may be less than ten percent or more

than fifty-two and one-half percent of the state's average

weekly wage for all insured work. The state's average weekly

wage shall be computed from all wages reported to the

department from employing units in accordance with rules of

the secretary for the period ending June 30 of each calendar

year divided by the total number of covered employees divided

by fifty-two, effective for the benefit years commencing on or

after the first Sunday of the following calendar year. An

individual is not eligible to receive benefits unless the

individual has wages in at least two quarters of that

individual's base period. For the purposes of this

subsection, "total wages" means all remuneration for insured

work, including commissions and bonuses and the cash value of

all remuneration in a medium other than cash;

(2) an eligible individual who is unemployed

in any week during which the individual is in a continued

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

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

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

self-employment, payable to the individual with respect to

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

weekly benefit amount. For purposes of this subsection only,

"wages" includes all remuneration for services actually

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performed in a week for which benefits are claimed, vacation

pay for a period for which the individual has a definite

return-to-work date, wages in lieu of notice and back pay for

loss of employment but does not include payments through a

court for time spent in jury service;

(3) notwithstanding any other provision of

this section, an eligible individual who, pursuant to a plan

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

individual, is receiving a governmental or other pension,

retirement pay, annuity or any other similar periodic payment

that is based on the previous work of the individual and who

is unemployed with respect to any week ending subsequent to

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

accordance with rules prescribed by the secretary,

compensation equal to the individual's weekly benefit amount

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

pension, retirement pay, annuity or other similar periodic

payment that exceeds the percentage contributed to the plan by

the eligible individual. The maximum benefit amount payable

to the eligible individual shall be an amount not more than

twenty-six times his reduced weekly benefit amount. If

payments referred to in this section are being received by an

individual under the federal Social Security Act, the division

shall take into account the individual's contribution and make

no reduction in the weekly benefit amount;

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(4) in the case of a lump-sum payment of a

pension, retirement or retired pay, annuity or other similar

payment by a base-period employer that is based on the

previous work of the individual, the payment shall be

allocated, in accordance with rules prescribed by the

secretary, and shall reduce the amount of unemployment

compensation paid, but not below zero, in accordance with

Paragraph (3) of this subsection; and

(5) the retroactive payment of a pension,

retirement or retired pay, annuity or any other similar

periodic payment as provided in Paragraphs (3) and (4) of this

subsection attributable to weeks during which an individual

has claimed or has been paid unemployment compensation shall

be allocated to those weeks and shall reduce the amount of

unemployment compensation for those weeks, but not below zero,

by an amount equal to the prorated amount of the pension. Any

overpayment of unemployment compensation benefits resulting

from the application of the provisions of this paragraph shall

be recovered from the claimant in accordance with the

provisions of Section 51-1-38 NMSA 1978.

C. An otherwise eligible individual is entitled

during any benefit year to a total amount of benefits equal to

whichever is the lesser of twenty-six times the individual's

weekly benefit amount or sixty percent of the individual's

wages for insured work paid during the individual's base

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period.

D. A benefit as determined in Subsection B or C of

this section, if not a multiple of one dollar ($1.00), shall

be rounded to the next lower multiple of one dollar ($1.00).

E. The secretary may prescribe rules to provide

for the payment of benefits that are due and payable to the

legal representative, dependents, relatives or next of kin of

claimants since deceased. These rules need not conform with

the laws governing successions, and the payment shall be

deemed a valid payment to the same extent as if made under a

formal administration of the succession of the claimant.

F. The division, on its own initiative, may

reconsider a monetary determination whenever it is determined

that an error in computation or identity has occurred or that

wages of the claimant pertinent to such determination but not

considered have been newly discovered or that the benefits

have been allowed or denied on the basis of misrepresentation

of fact, but no redetermination shall be made after one year

from the date of the original monetary determination. Notice

of a redetermination shall be given to all interested parties

and shall be subject to an appeal in the same manner as the

original determination. In the event that an appeal involving

an original monetary determination is pending at the time a

redetermination is issued, the appeal, unless withdrawn, shall

be treated as an appeal from redetermination."

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Section 7. Section 51-1-5 NMSA 1978 (being Laws 2003,

Chapter 47, Section 9, as amended by Section 2 of this act) is

repealed and a new Section 51-1-5 NMSA 1978 is enacted to

read:

"51-1-5. BENEFIT ELIGIBILITY CONDITIONS.--

A. An unemployed individual shall be eligible to

receive benefits with respect to any week only if the

individual:

(1) has made a claim for benefits with

respect to such week in accordance with such rules as the

secretary may prescribe;

(2) has registered for work at, and

thereafter continued to report at, an employment office in

accordance with such rules as the secretary may prescribe,

except that the secretary may, by rule, waive or alter either

or both of the requirements of this paragraph as to

individuals attached to regular jobs and as to such other

types of cases or situations with respect to which the

secretary finds that compliance with such requirements would

be oppressive or would be inconsistent with the purposes of

the Unemployment Compensation Law. No such rule shall

conflict with Subsection A of Section 51-1-4 NMSA 1978;

(3) is able to work and is available for work

and is actively seeking permanent and substantially full-time

work in accordance with the terms, conditions and hours common

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in the occupation or business in which the individual is

seeking work, except that the secretary may, by rule, waive

this requirement for individuals who are on temporary layoff

status from their regular employment with an assurance from

their employers that the layoff shall not exceed four weeks or

who have an express offer in writing of substantially full-

time work that will begin within a period not exceeding four

weeks;

(4) has been unemployed for a waiting period

of one week. A week shall not be counted as a week of

unemployment for the purposes of this paragraph:

(a) unless it occurs within the benefit

year that includes the week with respect to which the

individual claims payment of benefits;

(b) if benefits have been paid with

respect thereto; and

(c) unless the individual was eligible

for benefits with respect thereto as provided in this section

and Section 51-1-7 NMSA 1978, except for the requirements of

this subsection and of Subsection D of Section 51-1-7 NMSA

1978;

(5) has been paid wages in at least two

quarters of the individual's base period;

(6) has reported to an office of the division

in accordance with the rules of the secretary for the purpose

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of an examination and review of the individual's availability

for and search for work, for employment counseling, referral

and placement and for participation in a job finding or

employability training and development program. An individual

shall not be denied benefits under this section for any week

that the individual is participating in a job finding or

employability training and development program; and

(7) participates in reemployment services,

such as job search assistance services, if the division

determines that the individual is likely to exhaust regular

benefits and need reemployment services pursuant to a

profiling system established by the division, unless the

division determines that:

(a) the individual has completed such

services; or

(b) there is justifiable cause for the

individual's failure to participate in the services.

B. A benefit year as provided in Section 51-1-4

NMSA 1978 and Subsection P of Section 51-1-42 NMSA 1978 may be

established; provided an individual may not receive benefits

in a benefit year unless, subsequent to the beginning of the

immediately preceding benefit year during which the individual

received benefits, the individual performed service in

"employment", as defined in Subsection F of Section 51-1-42

NMSA 1978, and earned remuneration for such service in an

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amount equal to at least five times the individual's weekly

benefit amount.

C. Benefits based on service in employment defined

in Paragraph (8) of Subsection F of Section 51-1-42 and

Section 51-1-43 NMSA 1978 are to be paid in the same amount,

on the same terms and subject to the same conditions as

compensation payable on the basis of other services subject to

the Unemployment Compensation Law; except that:

(1) benefits based on services performed in

an instructional, research or principal administrative

capacity for an educational institution shall not be paid for

any week of unemployment commencing during the period between

two successive academic years or terms or, when an agreement

provides for a similar period between two regular but not

successive terms, during such period or during a period of

paid sabbatical leave provided for in the individual's

contract, to any individual if the individual performs such

services in the first of such academic years or terms and if

there is a contract or a reasonable assurance that the

individual will perform services in any such capacity for any

educational institution in the second of such academic years

or terms;

(2) benefits based on services performed for

an educational institution other than in an instructional,

research or principal administrative capacity shall not be

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paid for any week of unemployment commencing during a period

between two successive academic years or terms if the services

are performed in the first of such academic years or terms and

there is a reasonable assurance that the individual will

perform services for any educational institution in the second

of such academic years or terms. If compensation is denied to

an individual under this paragraph and the individual was not

offered an opportunity to perform such services for the

educational institution for the second of such academic years

or terms, the individual shall be entitled to a retroactive

payment of benefits for each week for which the individual

filed a claim and certified for benefits in accordance with

the rules of the division and for which benefits were denied

solely by reason of this paragraph;

(3) benefits shall be denied to any

individual for any week that commences during an established

and customary vacation period or holiday recess if the

individual performs any services described in Paragraphs (1)

and (2) of this subsection in the period immediately before

such period of vacation or holiday recess and there is a

reasonable assurance that the individual will perform any such

services in the period immediately following such vacation

period or holiday recess;

(4) benefits shall not be payable on the

basis of services specified in Paragraphs (1) and (2) of this

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subsection during the periods specified in Paragraphs (1), (2)

and (3) of this subsection to any individual who performed

such services in or to or on behalf of an educational

institution while in the employ of a state or local

governmental educational service agency or other governmental

entity or nonprofit organization; and

(5) for the purpose of this subsection, to

the extent permitted by federal law, "reasonable assurance"

means a reasonable expectation of employment in a similar

capacity in the second of such academic years or terms based

upon a consideration of all relevant factors, including the

historical pattern of reemployment in such capacity, a

reasonable anticipation that such employment will be available

and a reasonable notice or understanding that the individual

will be eligible for and offered employment in a similar

capacity.

D. Paragraphs (1), (2), (3), (4) and (5) of

Subsection C of this section shall apply to services performed

for all educational institutions, public or private, for

profit or nonprofit, which are operated in this state or

subject to an agreement for coverage under the Unemployment

Compensation Law of this state, unless otherwise exempt by

law.

E. Notwithstanding any other provisions of this

section or Section 51-1-7 NMSA 1978, no otherwise eligible

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individual is to be denied benefits for any week because the

individual is in training with the approval of the division

nor is the individual to be denied benefits by reason of

application of provisions in Paragraph (3) of Subsection A of

this section or Subsection C of Section 51-1-7 NMSA 1978 with

respect to any week in which the individual is in training

with the approval of the division. The secretary shall

provide, by rule, standards for approved training and the

conditions for approving training for claimants, including any

training approved or authorized for approval pursuant to

Section 236(a)(1) and (2) of the Trade Act of 1974, as

amended, or required to be approved as a condition for

certification of the state's Unemployment Compensation Law by

the United States secretary of labor.

F. Notwithstanding any other provisions of this

section, benefits shall not be payable on the basis of

services performed by an alien unless such alien is an

individual who was lawfully admitted for permanent residence

at the time the services were performed, was lawfully present

for the purposes of performing the services or was permanently

residing in the United States under color of law at the time

the services were performed, including an alien who was

lawfully present in the United States as a result of the

application of the provisions of Section 212(d)(5) of the

Immigration and Nationality Act; provided that:

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(1) any information required of individuals

applying for benefits to determine their eligibility for

benefits under this subsection shall be uniformly required

from all applicants for benefits; and

(2) an individual shall not be denied

benefits because of the individual's alien status except upon

a preponderance of the evidence.

G. Notwithstanding any other provision of this

section, benefits shall not be paid to any individual on the

basis of any services substantially all of which consist of

participating in sports or athletic events or training or

preparing to so participate for any week that commences during

the period between two successive sport seasons, or similar

periods, if the individual performed the services in the first

of such seasons, or similar periods, and there is a reasonable

assurance that the individual will perform the services in the

latter of such seasons or similar periods.

H. Students who are enrolled in a full-time course

schedule in an educational or training institution or program,

other than those persons in an approved vocational training

program in accordance with Subsection E of this section, shall

not be eligible for unemployment benefits except as provided

by regulations promulgated by the secretary.

I. As used in this subsection, "seasonal ski

employee" means an employee who has not worked for a ski area

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operator for more than six consecutive months of the previous

twelve months or nine of the previous twelve months. An

employee of a ski area operator who has worked for a ski area

operator for six consecutive months of the previous twelve

months or nine of the previous twelve months shall not be

considered a seasonal ski employee. The following benefit

eligibility conditions apply to a seasonal ski employee:

(1) except as provided in Paragraphs (2) and

(3) of this subsection, a seasonal ski employee employed by a

ski area operator on a regular seasonal basis shall be

ineligible for a week of unemployment benefits that commences

during a period between two successive ski seasons unless the

individual establishes to the satisfaction of the secretary

that the individual is available for and is making an active

search for permanent full-time work;

(2) a seasonal ski employee who has been

employed by a ski area operator during two successive ski

seasons shall be presumed to be unavailable for permanent new

work during a period after the second successive ski season

that the individual was employed as a seasonal ski employee;

and

(3) the presumption described in Paragraph

(2) of this subsection shall not arise as to any seasonal ski

employee who has been employed by the same ski area operator

during two successive ski seasons and has resided continuously

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for at least twelve successive months and continues to reside

in the county in which the ski area facility is located.

J. Notwithstanding any other provision of this

section, an otherwise eligible individual shall not be denied

benefits for any week by reason of the application of

Paragraph (3) of Subsection A of this section because the

individual is before any court of the United States or any

state pursuant to a lawfully issued summons to appear for jury

duty."

Section 8. Section 51-1-7 NMSA 1978 (being Laws 2003,

Chapter 47, Section 10, as amended by Section 3 of this act)

is repealed and a new Section 51-1-7 NMSA 1978 is enacted to

read:

"51-1-7. DISQUALIFICATION FOR BENEFITS.--

A. An individual shall be disqualified for, and

shall not be eligible to receive, benefits:

(1) if it is determined by the division that

the individual left employment voluntarily without good cause

in connection with the employment; provided, however, that a

person shall not be denied benefits under this paragraph

solely on the basis of pregnancy or the termination of

pregnancy;

(2) if it is determined by the division that

the individual has been discharged for misconduct connected

with the individual's employment; or

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(3) if it is determined by the division that

the individual has failed without good cause either to apply

for available, suitable work when so directed or referred by

the division or to accept suitable work when offered.

B. In determining whether or not any work is

suitable for an individual pursuant to Paragraph (3) of

Subsection A of this section, the division shall consider the

degree of risk involved to the individual's health, safety and

morals, the individual's physical fitness, prior training,

experience, prior earnings, length of unemployment and

prospects for securing local work in the individual's

customary occupation and the distance of available work from

the individual's residence. Notwithstanding any other

provisions of the Unemployment Compensation Law, no work shall

be deemed suitable and benefits shall not be denied under the

Unemployment Compensation Law to any otherwise eligible

individual for refusing to accept new work under any of the

following conditions:

(1) if the position offered is vacant due

directly to a strike, lockout or other labor dispute;

(2) if the wages, hours or other conditions

of the work offered are substantially less favorable to the

individual than those prevailing for similar work in the

locality; or

(3) if, as a condition of being employed, the

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individual would be required to join a company union or to

resign from or refrain from joining any bona fide labor

organizations.

C. An individual shall be disqualified for, and

shall not be eligible to receive, benefits for any week with

respect to which the division finds that the individual's

unemployment is due to a labor dispute at the factory,

establishment or other premises at which the individual is or

was last employed; provided that this subsection shall not

apply if it is shown to the satisfaction of the division that:

(1) the individual is not participating in or

directly interested in the labor dispute; and

(2) the individual does not belong to a grade

or class of workers of which, immediately before the

commencement of the labor dispute, there were members employed

at the premises at which the labor dispute occurs, any of whom

are participating in or directly interested in the dispute;

provided that if in any case separate branches of work that

are commonly conducted in separate businesses in separate

premises are conducted in separate departments of the same

premises, each such department shall, for the purposes of this

subsection, be deemed to be a separate factory, establishment

or other premises.

D. An individual shall be disqualified for, and

shall not be eligible to receive, benefits for any week with

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respect to which, or a part of which, the individual has

received or is seeking, through any agency other than the

division, unemployment benefits under an unemployment

compensation law of another state or of the United States;

provided that if the appropriate agency of such other state or

of the United States finally determines that the individual is

not entitled to such unemployment benefits, this

disqualification shall not apply.

E. A disqualification pursuant to Paragraph (1) or

(2) of Subsection A of this section shall continue for the

duration of the individual's unemployment and until the

individual has earned wages in bona fide employment other than

self-employment, as provided by rule of the secretary, in an

amount equivalent to five times the individual's weekly

benefit otherwise payable. A disqualification pursuant to

Paragraph (3) of Subsection A of this section shall include

the week the failure occurred and shall continue for the

duration of the individual's unemployment and until the

individual has earned wages in bona fide employment other than

self-employment, as provided by rule of the secretary, in an

amount equivalent to five times the individual's weekly

benefit amount otherwise payable; provided that no more than

one such disqualification shall be imposed upon an individual

for failure to apply for or accept the same position, or a

similar position, with the same employer, except upon a

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determination by the division of disqualification pursuant to

Subsection C of this section.

F. As used in this section, "employment" means

employment by the individual's last employer as defined by

rules of the secretary."

Section 9. Section 51-1-11 NMSA 1978 (being Laws 2003,

Chapter 47, Section 11, as amended by Section 4 of this act)

is repealed and a new Section 51-1-11 NMSA 1978 is enacted to

read:

"51-1-11. FUTURE RATES BASED ON BENEFIT EXPERIENCE.--

A. The division shall maintain a separate account

for each contributing employer and shall credit the

contributing employer's account with all contributions paid by

that employer under the Unemployment Compensation Law.

Nothing in the Unemployment Compensation Law shall be

construed to grant an employer or individuals in the

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

by the employer into the fund.

B. Benefits paid to an individual shall be charged

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

on a pro rata basis according to the proportion of the

individual's total base-period wages received from each

employer, except that no benefits paid to a claimant as

extended benefits under the provisions of Section 51-1-48 NMSA

1978 shall be charged to the account of any base-period

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employer who is not on a reimbursable basis and who is not a

governmental entity and, except as the secretary shall by rule

prescribe otherwise, in the case of benefits paid to an

individual who:

(1) left the employ of a base-period employer

who is not on a reimbursable basis voluntarily without good

cause in connection with the individual's employment;

(2) was discharged from the employment of a

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

misconduct connected with the individual's employment;

(3) is employed part time by a base-period

employer who is not on a reimbursable basis and who continues

to furnish the individual the same part-time work while the

individual is separated from full-time work for a

nondisqualifying reason; or

(4) received benefits based upon wages earned

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

while attending approved training under the provisions of

Subsection E of Section 51-1-5 NMSA 1978.

C. The division shall not charge a contributing or

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

benefit amounts that the division can bill to or recover from

the federal government as either regular or extended benefits.

D. All contributions to the fund shall be pooled

and available to pay benefits to any individual entitled

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thereto, irrespective of the source of such contributions.

The standard rate of contributions payable by each employer

shall be five and four-tenths percent.

E. An employer's rate shall not be varied from the

standard rate for any calendar year unless, as of the

computation date for that year, the employer's account has

been chargeable with benefits throughout the preceding thirty-

six months, except that:

(1) the provisions of this subsection shall

not apply to governmental entities;

(2) subsequent to December 31, 1984, any

employing unit that becomes an employer subject to the payment

of contributions under the Unemployment Compensation Law or

has been an employer subject to the payment of contributions

at a standard rate of two and seven-tenths percent through

December 31, 1984 shall be subject to the payment of

contributions at the reduced rate of two and seven-tenths

percent until, as of the computation date of a particular

year, the employer's account has been chargeable with benefits

throughout the preceding thirty-six months; and

(3) any individual, type of organization or

employing unit that acquires all or part of the trade or

business of another employing unit, pursuant to Paragraphs (2)

and (3) of Subsection E of Section 51-1-42 NMSA 1978, that has

a reduced rate of contribution shall be entitled to the

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transfer of the reduced rate to the extent permitted under

Subsection G of this section.

F. The secretary shall, for the year 1942 and for

each calendar year thereafter, classify employers in

accordance with their actual experience in the payment of

contributions and with respect to benefits charged against

their accounts, with a view of fixing such contribution rates

as will reflect such benefit experience. An employer's rate

for any calendar year shall be determined on the basis of the

employer's record and the condition of the fund as of the

computation date for such calendar year.

An employer may make voluntary payments in addition to

the contributions required under the Unemployment Compensation

Law, which shall be credited to the employer's account in

accordance with department rule. The voluntary payments shall

be included in the employer's account as of the employer's

most recent computation date if they are made on or before the

following March 1. Voluntary payments when accepted from an

employer shall not be refunded in whole or in part.

G. In the case of a transfer of an employing

enterprise, the experience history of the transferred

enterprise as provided in Subsection F of this section shall

be transferred from the predecessor employer to the successor

under the following conditions and in accordance with the

applicable rules of the secretary:

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(1) Definitions:

(a) "employing enterprise" is a

business activity engaged in by a contributing employing unit

in which one or more persons have been employed within the

current or the three preceding calendar quarters;

(b) "predecessor" means the owner and

operator of an employing enterprise immediately prior to the

transfer of such enterprise;

(c) "successor" means any individual or

any type of organization that acquires an employing enterprise

and continues to operate such business entity; and

(d) "experience history" means the

experience rating record and reserve account, including the

actual contributions, benefit charges and payroll experience

of the employing enterprise.

(2) For the purpose of this section, two or

more employers who are parties to or the subject of any

transaction involving the transfer of an employing enterprise

shall be deemed to be a single employer and the experience

history of the employing enterprise shall be transferred to

the successor employer if the successor employer has acquired

by the transaction all of the business enterprises of the

predecessor; provided that:

(a) all contributions, interest and

penalties due from the predecessor employer have been paid;

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(b) notice of the transfer has been

given in accordance with the rules of the secretary within

four years of the transaction transferring the employing

enterprise or the date of the actual transfer of control and

operation of the employing enterprise;

(c) in the case of the transfer of an

employing enterprise, the successor employer must notify the

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

successor employer's first wage and contribution report. If

the successor employer fails to notify the division of the

acquisition within this time limit, the division, when it

receives actual notice, shall effect the transfer of the

experience history and applicable rate of contribution

retroactively to the date of the acquisition, and the

successor shall pay a penalty of fifty dollars ($50.00); and

(d) where the transaction involves only

a merger, consolidation or other form of reorganization

without a substantial change in the ownership and controlling

interest of the business entity, as determined by the

secretary, the limitations on transfers stated in

Subparagraphs (a), (b) and (c) of this paragraph shall not

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

reorganization described in this paragraph shall not be

relieved of liability for any contributions, interest or

penalties due and owing from the employing enterprise at the

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time of the merger, consolidation or other form of

reorganization.

(3) The applicable experience history may be

transferred to the successor in the case of a partial transfer

of an employing enterprise if the successor has acquired one

or more of the several employing enterprises of a predecessor

but not all of the employing enterprises of the predecessor

and each employing enterprise so acquired was operated by the

predecessor as a separate store, factory, shop or other

separate employing enterprise and the predecessor, throughout

the entire period of the contribution with liability

applicable to each enterprise transferred, has maintained and

preserved payroll records that, together with records of

contribution liability and benefit chargeability, can be

separated by the parties from the enterprises retained by the

predecessor to the satisfaction of the secretary or the

secretary's delegate. A partial experience history transfer

will be made only if:

(a) the successor notifies the division

of the acquisition, in writing, not later than the due date of

the successor's first quarterly wage and contribution report

after the effective date of the acquisition;

(b) the successor files an application

provided by the division that contains the endorsement of the

predecessor within thirty days from the delivery or mailing of

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such application by the division to the successor's last known

address; and

(c) the successor files with the

application a Form ES-903A or its equivalent with a schedule

of the name and social security number of and the wages paid

to and the contributions paid for each employee for the three

and one-half year period preceding the computation date as

defined in Subparagraph (d) of Paragraph (3) of Subsection H

of this section through the date of transfer or such lesser

period as the enterprises transferred may have been in

operation. The application and Form ES-903A shall be

supported by the predecessor's permanent employment records,

which shall be available for audit by the division. The

application and Form ES-903A shall be reviewed by the division

and, upon approval, the percentage of the predecessor's

experience history attributable to the enterprises transferred

shall be transferred to the successor. The percentage shall

be obtained by dividing the taxable payrolls of the

transferred enterprises for such three and one-half year

period preceding the date of computation or such lesser period

as the enterprises transferred may have been in operation by

the predecessor's entire payroll.

H. For each calendar year, adjustments of

contribution rates below the standard or reduced rate and

measures designed to protect the fund are provided in

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Paragraphs (1) through (4) of this subsection.

(1) The total assets in the fund and the

total of the last annual payrolls of all employers subject to

contributions as of the computation date for each year shall

be determined. These annual totals are here called "the fund"

and "total payrolls". For each year, the "reserve" of each

employer qualified under Subsection E of this section shall be

fixed by the excess of the employer's total contributions over

total benefit charges computed as a percentage of the

employer's average payroll reported for contributions. The

determination of each employer's annual rate, computed as of

the computation date for each calendar year, shall be made by

matching the employer's reserve as shown in the reserve column

with the corresponding rate in the rate column of the

applicable rate schedule of the table provided in Paragraph

(4) of this subsection.

(2) Each employer's rate for each calendar

year commencing January 1, 1979 or thereafter shall be:

(a) the corresponding rate in Schedule

1 of the table provided in Paragraph (4) of this subsection if

the fund equals at least three and four-tenths percent of the

total payrolls;

(b) the corresponding rate in Schedule

2 of the table provided in Paragraph (4) of this subsection if

the fund has dropped to less than three and four-tenths

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percent and not less than two and seven-tenths percent of the

total payrolls;

(c) the corresponding rate in Schedule

3 of the table provided in Paragraph (4) of this subsection if

the fund has dropped to less than two and seven-tenths percent

and not less than two percent of the total payrolls;

(d) the corresponding rate in Schedule

4 of the table provided in Paragraph (4) of this subsection if

the fund has dropped to less than two percent and not less

than one and one-half percent of the total payrolls;

(e) the corresponding rate in Schedule

5 of the table provided in Paragraph (4) of this subsection if

the fund has dropped to less than one and one-half percent and

not less than one percent of the total payrolls; or

(f) the corresponding rate in Schedule

6 of the table provided in Paragraph (4) of this subsection if

the fund has dropped less than one percent of the total

payrolls.

(3) As used in this section:

(a) "annual payroll" means the total

amount of remuneration from an employer for employment during

a twelve-month period ending on a computation date, and

"average payroll" means the average of the last three annual

payrolls;

(b) "base-period wages" means the wages

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

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

were determined;

(c) "base-period employers" means the

employers of an individual during the individual's base

period; and

(d) "computation date" for each

calendar year means the close of business on June 30 of the

preceding calendar year.

(4) Table of employer reserves and

contribution rate schedules:

Employer

Contribution Contribution Contribution

Reserve

Schedule 1 Schedule 2

Schedule 3

10.0% and over

0.05%

0.1%

0.6%

9.0%-9.9%

0.1%

0.2%

0.9%

8.0%-8.9%

0.2%

0.4%

1.2%

7.0%-7.9%

0.4%

0.6%

1.5%

6.0%-6.9%

0.6%

0.8%

1.8%

5.0%-5.9%

0.8%

1.1%

2.1%

4.0%-4.9%

1.1%

1.4%

2.4%

3.0%-3.9%

1.4%

1.7%

2.7%

2.0%-2.9%

1.7%

2.0%

3.0%

1.0%-1.9%

2.0%

2.4%

3.3%

0.9%-0.0%

2.4%

3.3%

3.6%

(-0.1%)-(-0.5%)

3.3%

3.6%

3.9%

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(-0.5%)-(-1.0%)

4.2%

4.2%

4.2%

(-1.0%)-(-2.0%)

5.0%

5.0%

5.0%

Under (-2.0%)

5.4%

5.4%

5.4%

Employer Contribution Contribution Contribution

Reserve Schedule 4

Schedule 5

Schedule 6

10.0% and over

0.9%

1.2%

2.7%

9.0%-9.9%

1.2%

1.5%

2.7%

8.0%-8.9%

1.5%

1.8%

2.7%

7.0%-7.9%

1.8%

2.1%

2.7%

6.0%-6.9%

2.1%

2.4%

2.7%

5.0%-5.9%

2.4%

2.7%

3.0%

4.0%-4.9%

2.7%

3.0%

3.3%

3.0%-3.9%

3.0%

3.3%

3.6%

2.0%-2.9%

3.3%

3.6%

3.9%

1.0%-1.9%

3.6%

3.9%

4.2%

0.9%-0.0%

3.9%

4.2%

4.5%

(-0.1%)-(-0.5%)

4.2%

4.5%

4.8%

(-0.5%)-(-1.0%)

4.5%

4.8%

5.1%

(-1.0%)-(-2.0%)

5.0%

5.1%

5.3%

Under (-2.0%)

5.4%

5.4%

5.4%.

I. The division shall promptly notify each

employer of the employer's rate of contributions as determined

for any calendar year pursuant to this section. Such

notification shall include the amount determined as the

employer's average payroll, the total of all of the employer's

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contributions paid on the employer's behalf and credited to

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

charged to the employer's account for all such years. Such

determination shall become conclusive and binding upon the

employer unless, within thirty days after the mailing of

notice thereof to the employer's last known address or in the

absence of mailing, within thirty days after the delivery of

such notice, the employer files an application for review and

redetermination, setting forth the employer's reason therefor.

The employer shall be granted an opportunity for a fair

hearing in accordance with rules prescribed by the secretary,

but an employer shall not have standing, in any proceeding

involving the employer's rate of contributions or contribution

liability, to contest the chargeability to the employer's

account of any benefits paid in accordance with a

determination, redetermination or decision pursuant to Section

51-1-8 NMSA 1978, except upon the ground that the services on

the basis of which such benefits were found to be chargeable

did not constitute services performed in employment for the

employer and only in the event that the employer was not a

party to such determination, redetermination or decision, or

to any other proceedings under the Unemployment Compensation

Law in which the character of such services was determined.

The employer shall be promptly notified of the decision on the

employer's application for redetermination, which shall become

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final unless, within fifteen days after the mailing of notice

thereof to the employer's last known address or in the absence

of mailing, within fifteen days after the delivery of such

notice, further appeal is initiated pursuant to Subsection D

of Section 51-1-8 NMSA 1978.

J. The division shall provide each contributing

employer, within ninety days of the end of each calendar

quarter, a written determination of benefits chargeable to the

employer's account. Such determination shall become

conclusive and binding upon the employer for all purposes

unless, within thirty days after the mailing of the

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

absence of mailing, within thirty days after the delivery of

such determination, the employer files an application for

review and redetermination, setting forth the employer's

reason therefor. The employer shall be granted an opportunity

for a fair hearing in accordance with rules prescribed by the

secretary, but an employer shall not have standing in any

proceeding involving the employer's contribution liability to

contest the chargeability to the employer's account of any

benefits paid in accordance with a determination,

redetermination or decision pursuant to Section 51-1-8 NMSA

1978, except upon the ground that the services on the basis of

which such benefits were found to be chargeable did not

constitute services performed in employment for the employer

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and only in the event that the employer was not a party to

such determination, redetermination or decision, or to any

other proceedings under the Unemployment Compensation Law in

which the character of such services was determined. The

employer shall be promptly notified of the decision on the

employer's application for redetermination, which shall become

final unless, within fifteen days after the mailing of notice

thereof to the employer's last known address or in the absence

of mailing, within fifteen days after the delivery of such

notice, further appeal is initiated pursuant to Subsection D

of Section 51-1-8 NMSA 1978.

K. The contributions, together with interest and

penalties thereon imposed by the Unemployment Compensation

Law, shall not be assessed nor shall action to collect the

same be commenced more than four years after a report showing

the amount of the contributions was due. In the case of a

false or fraudulent contribution report with intent to evade

contributions or a willful failure to file a report of all

contributions due, the contributions, together with interest

and penalties thereon, may be assessed or an action to collect

such contributions may be begun at any time. Before the

expiration of such period of limitation, the employer and the

secretary may agree in writing to an extension thereof and the

period so agreed on may be extended by subsequent agreements

in writing. In any case where the assessment has been made

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and action to collect has been commenced within four years of

the due date of any contribution, interest or penalty,

including the filing of a warrant of lien by the secretary

pursuant to Section 51-1-36 NMSA 1978, such action shall not

be subject to any period of limitation.

L. The secretary shall correct any error in the

determination of an employer's rate of contribution during the

calendar year to which the erroneous rate applies,

notwithstanding that notification of the employer's rate of

contribution may have been issued and contributions paid

pursuant to the notification. Upon issuance by the division

of a corrected rate of contribution, the employer shall have

the same rights to review and redetermination as provided in

Subsection I of this section.

M. Any interest required to be paid on advances to

this state's unemployment compensation fund under Title 12 of

the Social Security Act shall be paid in a timely manner as

required under Section 1202 of Title 12 of the Social Security

Act and shall not be paid, directly or indirectly, by the

state from amounts in the state's unemployment compensation

fund."

Section 10. Section 51-1-42 NMSA 1978 (being Laws 2003,

Chapter 47, Section 12, as amended by Section 5 of this act)

is repealed and a new Section 51-1-42 NMSA 1978 is enacted to

read:

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

Compensation Law:

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

five completed calendar quarters immediately preceding the

first day of an individual's benefit year;

B. "benefits" means the cash unemployment

compensation payments payable to an eligible individual

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

individual's weeks of unemployment;

C. "contributions" means the money payments

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

by an employer on account of having individuals performing

services for the employer;

D. "employing unit" means any individual or type

of organization, including any partnership, association,

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

enterprise, insurance company or corporation, whether domestic

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

successor thereof, household, fraternity or club, the legal

representative of a deceased person or any state or local

government entity to the extent required by law to be covered

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

individuals performing services for it within this state. An

individual performing services for an employing unit that

maintains two or more separate establishments within this

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state shall be deemed to be employed by a single employing

unit for all the purposes of the Unemployment Compensation

Law. An individual performing services for a contractor,

subcontractor or agent that is performing work or services for

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

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

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

the employ of the employing unit for all purposes of the

Unemployment Compensation Law unless the contractor,

subcontractor or agent is itself an employer within the

provisions of Subsection E of this section;

E. "employer" includes:

(1) an employing unit that:

(a) unless otherwise provided in this

section, paid for service in employment as defined in

Subsection F of this section wages of four hundred fifty

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

current or preceding calendar year or had in employment, as

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

day in each of twenty different calendar weeks during either

the current or the preceding calendar year, and irrespective

of whether the same individual was in employment in each such

day, at least one individual;

(b) for the purposes of Subparagraph

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

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

deemed one calendar week and the days beginning January 1,

another such week; and

(c) for purposes of defining an

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

or remuneration paid to individuals performing services in

employment in agricultural labor or domestic services as

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

section shall not be taken into account; except that any

employing unit determined to be an employer of agricultural

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

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

so long as the employing unit is paying wages or remuneration

for services other than agricultural services;

(2) any individual or type of organization

that acquired the trade or business or substantially all of

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

the acquisition was an employer subject to the Unemployment

Compensation Law; provided that where such an acquisition

takes place, the secretary may postpone activating the

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

NMSA 1978 until such time as the successor employer has

employment as defined in Subsection F of this section;

(3) an employing unit that acquired all or

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

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

other employing unit or part thereof, would be an employer

under Paragraph (1) of this subsection;

(4) an employing unit not an employer by

reason of any other paragraph of this subsection:

(a) for which, within either the

current or preceding calendar year, service is or was

performed with respect to which such employing unit is liable

for any federal tax against which credit may be taken for

contributions required to be paid into a state unemployment

fund; or

(b) that, as a condition for approval

of the Unemployment Compensation Law for full tax credit

against the tax imposed by the Federal Unemployment Tax Act,

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

the Unemployment Compensation Law;

(5) an employing unit that, having become an

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

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

to be an employer subject to the Unemployment Compensation

Law;

(6) for the effective period of its election

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

unit that has elected to become fully subject to the

Unemployment Compensation Law;

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(7) an employing unit for which any services

performed in its employ are deemed to be performed in this

state pursuant to an election under an arrangement entered

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

1978; and

(8) an Indian tribe as defined in 26 USCA

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

F. "employment":

(1) means any service, including service in

interstate commerce, performed for wages or under any contract

of hire, written or oral, express or implied;

(2) means an individual's entire service,

performed within or both within and without this state if:

(a) the service is primarily localized

in this state with services performed outside the state being

only incidental thereto; or

(b) the service is not localized in any

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

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

operations, the place from which such service is directed or

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

place from which such service is directed or controlled is not

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

but the individual's residence is in this state;

(3) means services performed within this

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

if contributions or payments in lieu of contributions are not

required and paid with respect to such services under an

unemployment compensation law of any other state, the federal

government or Canada;

(4) means services covered by an election

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

an election duly approved by the secretary in accordance with

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

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

during the effective period of the election;

(5) means services performed by an individual

for an employer for wages or other remuneration unless and

until it is established by a preponderance of evidence that:

(a) the individual has been and will

continue to be free from control or direction over the

performance of the services both under the individual's

contract of service and in fact;

(b) the service is either outside the

usual course of business for which the service is performed or

that such service is performed outside of all the places of

business of the enterprise for which such service is

performed; and

(c) the individual is customarily

engaged in an independently established trade, occupation,

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profession or business of the same nature as that involved in

the contract of service;

(6) means service performed after December

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

Subsection Q of this section if:

(a) the service is performed for an

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

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

employment during any calendar quarter in either the current

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

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

each of twenty different calendar weeks in either the current

or preceding calendar year, whether or not the weeks were

consecutive, and regardless of whether the individuals were

employed at the same time;

(b) the service is not performed before

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

the United States to perform service in agricultural labor

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

Immigration and Nationality Act; and

(c) for purposes of this paragraph, an

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

leader to perform service in agricultural labor for a farm

operator or other person shall be treated as an employee of

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

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

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

maintain mechanized agricultural equipment that is provided by

the crew leader; and 3) the individuals performing the

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

meaning of Paragraph (5) of this subsection, performing

services in employment for the farm operator or other person;

(7) means service performed after December

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

home, local college club or local chapter of a college

fraternity or sorority for a person or organization that paid

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

calendar quarter in the current or preceding calendar year to

individuals performing such services;

(8) means service performed after December

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

charitable, educational or other organization but only if the

following conditions are met:

(a) the service is excluded from

"employment" as defined in the Federal Unemployment Tax Act

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

(b) the organization meets the

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

Paragraph (1) of Subsection E of this section;

(9) means service of an individual who is a

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citizen of the United States, performed outside the United

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

employ of an American employer, other than service that is

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

this subsection or the parallel provisions of another state's

law, if:

(a) the employer's principal place of

business in the United States is located in this state;

(b) the employer has no place of

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

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

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

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

partners or trustees who are residents of this state is

greater than the number who are residents of any one other

state; or

(c) none of the criteria of

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

employer has elected coverage in this state or, the employer

having failed to elect coverage in any state, the individual

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

the law of this state.

"American employer" for the purposes of this paragraph

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

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

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

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

a corporation organized under the laws of the United States or

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

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

the commonwealth of Puerto Rico and the Virgin Islands;

(10) means, notwithstanding any other

provisions of this subsection, service with respect to which a

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

tax against which credit may be taken for contributions

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

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

Federal Unemployment Tax Act is required to be covered under

the Unemployment Compensation Law;

(11) means service performed in the employ of

an Indian tribe if:

(a) the service is excluded from

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

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

(b) the service is not otherwise

excluded from employment pursuant to the Unemployment

Compensation Law;

(12) does not include:

(a) service performed in the employ of:

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

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organization that is operated primarily for religious purposes

and that is operated, supervised, controlled or principally

supported by a church or convention or association of

churches;

(b) service performed by a duly

ordained, commissioned or licensed minister of a church in the

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

in the exercise of duties required by such order;

(c) service performed by an individual

in the employ of his son, daughter or spouse, and service

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

of his father or mother;

(d) service performed in the employ of

the United States government or an instrumentality of the

United States immune under the constitution of the United

States from the contributions imposed by the Unemployment

Compensation Law except that to the extent that the congress

of the United States shall permit states to require any

instrumentalities of the United States to make payments into

an unemployment fund under a state unemployment compensation

act, all of the provisions of the Unemployment Compensation

Law shall be applicable to such instrumentalities, and to

service performed for such instrumentalities in the same

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

other employers, employing units, individuals and services;

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provided that if this state shall not be certified for any

year by the secretary of labor of the United States under

Section 3304 of the federal Internal Revenue Code of 1986, 26

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

instrumentalities with respect to such year shall be refunded

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

the same period as is provided in Subsection D of

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

erroneously collected;

(e) service performed in a facility

conducted for the purpose of carrying out a program of

rehabilitation for individuals whose earning capacity is

impaired by age or physical or mental deficiency or injury or

providing remunerative work for individuals who because of

their impaired physical or mental capacity cannot be readily

absorbed in the competitive labor market, by an individual

receiving that rehabilitation or remunerative work;

(f) service with respect to which

unemployment compensation is payable under an unemployment

compensation system established by an act of congress;

(g) service performed in the employ of

a foreign government, including service as a consular or other

officer or employee or a nondiplomatic representative;

(h) service performed by an individual

for a person as an insurance agent or as an insurance

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solicitor, if all such service performed by the individual for

the person is performed for remuneration solely by way of

commission;

(i) service performed by an individual

under the age of eighteen in the delivery or distribution of

newspapers or shopping news, not including delivery or

distribution to any point for subsequent delivery or

distribution;

(j) service covered by an election duly

approved by the agency charged with the administration of any

other state or federal unemployment compensation law, in

accordance with an arrangement pursuant to Paragraph (1) of

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

period of the election;

(k) service performed, as part of an

unemployment work-relief or work-training program assisted or

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

of a state or political subdivision thereof, by an individual

receiving the work relief or work training;

(l) service performed by an individual

who is enrolled at a nonprofit or public educational

institution that normally maintains a regular faculty and

curriculum and normally has a regularly organized body of

students in attendance at the place where its educational

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

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taken for credit at the institution that combines academic

instruction with work experience, if the service is an

integral part of such program and the institution has so

certified to the employer, except that this subparagraph shall

not apply to service performed in a program established for or

on behalf of an employer or group of employers;

(m) service performed in the employ of

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

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

penal institution for any employer;

(n) service performed by real estate

salesmen for others when the services are performed for

remuneration solely by way of commission;

(o) service performed in the employ of

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

a student who is enrolled and is regularly attending classes

at the school, college or university;

(p) service performed by an individual

for a fixed or contract fee officiating at a sporting event

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

governmental entity if that person is not otherwise an

employee of the entity conducting the sporting event;

(q) service performed for a private,

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

demonstrator or product merchandiser if the service is

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performed pursuant to a written contract between that

individual and a person or entity whose principal business is

obtaining the services of product demonstrators and product

merchandisers for third parties, for demonstration and

merchandising purposes and the individual: 1) is compensated

for each job or the compensation is based on factors related

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

perform the service, unless special equipment is required and

provided by the manufacturer through an agency; 3) is

responsible for completion of a specific job and for any

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

opportunity for profit or loss rests solely with the

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

repairs and motor vehicle insurance. For the purpose of this

subparagraph, "product demonstrator" means an individual who,

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

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

or sales promotion for the product and who is not otherwise

employed directly by the manufacturer, distributor or

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

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

display and who is not otherwise directly employed by the

manufacturer, distributor or retailer; or

(r) service performed for a private,

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

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substantially all remuneration paid in cash or otherwise for

the performance of the services is directly related to the

completion by the individual of the specific tasks contracted

for rather than to the number of hours worked by the

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

means a land professional who has been engaged primarily in:

1) negotiating for the acquisition or divestiture of mineral

rights; 2) negotiating business agreements that provide for

the exploration for or development of minerals; 3) determining

ownership of minerals through the research of public and

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

title defects and otherwise reducing title risk associated

with ownership of minerals; managing rights or obligations

derived from ownership of interests and minerals; or utilizing

or pooling of interest in minerals; and

(13) for the purposes of this subsection, if

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

period by an individual for the person employing the

individual constitute employment, all the services of the

individual for the period shall be deemed to be employment

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

any such pay period by an individual for the person employing

the individual do not constitute employment, then none of the

services of the individual for the period shall be deemed to

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

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

consecutive days, for which a payment of remuneration is

ordinarily made to the individual by the person employing the

individual. This paragraph shall not be applicable with

respect to services performed in a pay period by an individual

for the person employing the individual where any of such

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

this subsection;

G. "employment office" means a free public

employment office, or branch thereof, operated by this state

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

employment offices;

H. "fund" means the unemployment compensation fund

established by the Unemployment Compensation Law to which all

contributions and payments in lieu of contributions required

under the Unemployment Compensation Law and from which all

benefits provided under the Unemployment Compensation Law

shall be paid;

I. "unemployment" means, with respect to an

individual, any week during which the individual performs no

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

individual and during which the individual is not engaged in

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

employment. The secretary shall prescribe by rule what

constitutes part-time and intermittent employment, partial

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employment and the conditions under which individuals engaged

in such employment are eligible for partial unemployment

benefits;

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

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

the United States, the District of Columbia, the commonwealth

of Puerto Rico and the Virgin Islands;

K. "unemployment compensation administration fund"

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

NMSA 1978 from which administrative expenses under the

Unemployment Compensation Law shall be paid. "Employment

security department fund" means the fund established by

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

administrative expenses under the Unemployment Compensation

Law shall be paid;

L. "crew leader" means a person who:

(1) holds a valid certificate of registration

as a crew leader or farm labor contractor under the federal

Migrant and Seasonal Agricultural Worker Protection Act;

(2) furnishes individuals to perform services

in agricultural labor for any other person;

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

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

furnished by the crew leader for service in agricultural

labor; and

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(4) has not entered into a written agreement

with the other person for whom the crew leader furnishes

individuals in agricultural labor that the individuals will be

the employees of the other person;

M. "week" means such period of seven consecutive

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

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

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

greater part of such week;

N. "calendar quarter" means the period of three

consecutive calendar months ending on March 31, June 30,

September 30 or December 31;

O. "insured work" means services performed for

employers who are covered under the Unemployment Compensation

Law;

P. "benefit year" with respect to an individual

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

first week of unemployment with respect to which the

individual first files a claim for benefits in accordance with

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

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

of unemployment with respect to which the individual next

files such a claim for benefits after the termination of the

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

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

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

51-1-5 NMSA 1978;

Q. "agricultural labor" includes all services

performed:

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

connection with cultivating the soil or in connection with

raising or harvesting an agricultural or horticultural

commodity, including the raising, shearing, feeding, caring

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

fur-bearing animals and wildlife;

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

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

management, conservation or maintenance of the farm and its

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

performed on a farm;

(3) in connection with the operation or

maintenance of ditches, canals, reservoirs or waterways used

exclusively for supplying and storing water for farming

purposes when such ditches, canals, reservoirs or waterways

are owned and operated by the farmers using the water stored

or carried therein; and

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

packaging, processing, freezing, grading, storing or delivery

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

market any agricultural or horticultural commodity but only if

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the service is performed as an incident to ordinary farming

operations. The provisions of this paragraph shall not be

deemed to be applicable with respect to service performed in

connection with commercial canning or commercial freezing or

in connection with any agricultural or horticultural commodity

after its delivery to a terminal market for distribution for

consumption.

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

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

farms, plantations, ranches, nurseries, greenhouses, ranges

and orchards;

R. "payments in lieu of contributions" means the

money payments made into the fund by an employer pursuant to

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

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

S. "department" means the labor department; and

T. "wages" means all remuneration for services,

including commissions and bonuses and the cash value of all

remuneration in any medium other than cash. The reasonable

cash value of remuneration in any medium other than cash shall

be established and determined in accordance with rules

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

shall not include:

(1) subsequent to December 31, 1977, that

part of the remuneration in excess of the base wage as

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determined by the secretary for each calendar year. The base

wage upon which contribution shall be paid during any calendar

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

earnings computed by the division by dividing total wages

reported to the division by contributing employers for the

second preceding calendar year before the calendar year the

computed base wage becomes effective by the average annual

employment reported by contributing employers for the same

period rounded to the next higher multiple of one hundred

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

any calendar year shall not be less than seven thousand

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

in his employ during any calendar year in excess of the base

wage in effect for that calendar year shall be reported to the

department but shall be exempt from the payment of

contributions unless such wages paid in excess of the base

wage become subject to tax under a federal law imposing a tax

against which credit may be taken for contributions required

to be paid into a state unemployment fund;

(2) the amount of any payment with respect to

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

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

system established by the employing unit that makes provision

for individuals in its employ generally or for a class or

classes of individuals, including any amount paid by an

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

provide for any payment, on account of:

(a) retirement if the payments are made

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

simplified employee pension plan that provides for payments by

an employer in addition to the salary or other remuneration

normally payable to the employee or class of employees and

does not include any payments that represent deferred

compensation or other reduction of an employee's normal

taxable wages or remuneration or any payments made to a third

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

deferred remuneration;

(b) sickness or accident disability if

the payments are received under a workers' compensation or

occupational disease disablement law;

(c) medical and hospitalization

expenses in connection with sickness or accident disability;

or

(d) death; provided the individual in

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

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

death benefit is insured, any part of the premiums or

contributions to premiums paid by the individual's employing

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

system or policy of insurance providing for the death benefit

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

lieu of the benefit either upon the individual's withdrawal

from the plan or system providing for the benefit or upon

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

the individual's service with the employing unit;

(3) remuneration for agricultural labor paid

in any medium other than cash;

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

employee or an employee's beneficiary under a cafeteria plan

within the meaning of Section 125 of the federal Internal

Revenue Code of 1986;

(5) a payment made, or benefit furnished to

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

payment or such furnishing it is reasonable to believe that

the employee will be able to exclude the payment or benefit

from income under Section 129 of the federal Internal Revenue

Code of 1986;

(6) a payment made by an employer to a

survivor or the estate of a former employee after the calendar

year in which the employee died;

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

employee or the employee's beneficiary under an arrangement to

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

1986 applies, other than any elective contributions under

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

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

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

believe that the employee will be able to exclude the payment

from income under Section 106 of the federal Internal Revenue

Code of 1986; or

(9) the value of any meals or lodging

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

benefit is provided it is reasonable to believe that the

employee will be able to exclude such items from income under

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

Section 11. A new section of the Unemployment

Compensation Law is enacted to read:

"TEMPORARY EMPLOYERS' CONTRIBUTION RATE.--Notwithstanding

the provisions of Paragraph (2) of Subsection I of

Section 51-1-11 NMSA 1978, each employer's rate shall be the

corresponding rate in Schedule 0 of the table provided in

Paragraph (4) of that subsection for calendar year 2005 and

each subsequent calendar year until the earliest of the

following:

A. January 1, 2008; or

B. the January 1 following certification to the

governor by the secretary of labor that the unemployment

compensation fund is less than two and one-half percent of

total payrolls pursuant to the computation provided in

Paragraph (1) of Subsection I of Section 51-1-11 NMSA 1978."

Section 12. APPLICABILITY.--The provisions of

Sections 1 through 5 of this act apply to benefit calculations

and eligibility determinations made on or after January 1,

2005.

Section 13. EFFECTIVE DATE.--The effective date of the

provisions of Sections 6 through 10 of this act is the

earliest of the following:

A. January 1, 2008; or

B. the January 1 following certification to the

governor by the secretary of labor that the unemployment

compensation fund is less than two and one-half percent of

total payrolls pursuant to the computation provided in

Paragraph (1) of Subsection I of Section 51-1-11 NMSA 1978.

Section 14. EMERGENCY.--It is necessary for the public

peace, health and safety that this act take effect

immediately. HB 9

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