House Bill text for HB1280

HOUSE BILL 1280

48th legislature - STATE OF NEW MEXICO - first session, 2007

INTRODUCED BY

Luciano "Lucky" Varela

AN ACT

RELATING TO GOVERNMENT ORGANIZATION; CREATING THE WORKFORCE SOLUTIONS DEPARTMENT; PROVIDING POWERS AND DUTIES; PROVIDING FOR TRANSFERS; RECONCILING MULTIPLE AMENDMENTS TO THE SAME SECTION OF LAW IN LAWS 2005; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.

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

Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 14 of this act may be cited as the "Workforce Solutions Department Act".

Section 2. [NEW MATERIAL] PURPOSE.--The purpose of the Workforce Solutions Department Act is to establish a single, unified department to administer all laws and exercise all functions formerly administered and exercised by the labor department and the office of workforce development.

Section 3. [NEW MATERIAL] DEFINITIONS.--As used in the Workforce Solutions Department Act:

A. "department" means the workforce solutions department; and

B. "secretary" means the secretary of workforce solutions.

Section 4. [NEW MATERIAL] WORKFORCE SOLUTIONS DEPARTMENT CREATED.--The "workforce solutions department" is created in the executive branch pursuant to the Executive Reorganization Act. The department is a cabinet department that includes:

A. the office of the secretary;

B. the administrative services division;

C. the business services division;

D. the labor relations division;

E. the workforce technology division; and

F. the workforce transition services division.

Section 5. [NEW MATERIAL] SECRETARY OF WORKFORCE SOLUTIONS--APPOINTMENT.--

A. The chief executive and administrative officer of the department is the "secretary of workforce solutions". The secretary shall be appointed by the governor with the consent of the senate. The secretary shall hold office at the pleasure of the governor and shall serve in the executive cabinet.

B. A secretary who has been appointed but not yet confirmed shall serve and have all the duties, responsibilities and authority assigned by law to that office during the period of time prior to the final action by the senate to confirm or reject the appointment.

Section 6. [NEW MATERIAL] SECRETARY--GENERAL POWERS AND DUTIES.--

A. The secretary is responsible to the governor for the operation of the department. It is the secretary's duty to manage all operations of the department and to administer and enforce the laws with which the secretary or the department is charged.

B. To perform the secretary's duties, the secretary has every power expressly enumerated in the laws whether granted to the secretary or the department or any division of the department, except where authority conferred upon the human rights commission is explicitly granted by Section 28-1-4 NMSA 1978 and except where authority conferred upon any division therein is explicitly exempted from the secretary's authority by statute. In accordance with these provisions, the secretary shall:

(1) except as otherwise provided in the Workforce Solutions Department Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and regulations;

(2) delegate authority to subordinates as the secretary deems necessary and appropriate, clearly delineating such delegated authority and the limitations thereto;

(3) organize the department into those organizational units the secretary deems will enable it to function most efficiently, subject to any provisions of law requiring or establishing specific organizational units;

(4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge the secretary's duties;

(5) take administrative action by issuing orders and instructions, not inconsistent with the law, to ensure implementation of and compliance with the provisions of law with the administration or execution of which the secretary is responsible, and to enforce those orders and instructions by appropriate administrative action or actions in the court;

(6) conduct research and studies that will improve the operation of the department;

(7) provide courses of instruction and practical training for employees of the department and other persons involved in the administration of programs with the objective of improving the operations and efficiency of administration;

(8) prepare an annual budget of the department;

(9) provide cooperation, at the request of heads of administratively attached agencies, in order to:

(a) minimize or eliminate duplication of services and jurisdictional conflicts;

(b) coordinate activities and resolve problems of mutual concern; and

(c) resolve by agreement the manner and extent to which the department shall provide budgeting, record keeping and related clerical assistance to administratively attached agencies, if any; and

(10) within budgetary limits, appoint such staff as required to carry out the duties of the secretary or the department.

C. The secretary may apply for and receive, with the governor's approval, in the name of the department, any public or private funds, including United States government funds, available to the department to carry out its programs, duties or services.

D. Where functions of departments overlap or a function assigned to one department could better be performed by another department, the secretary may recommend appropriate legislation to the next session of the legislature for its approval.

E. The secretary may make and adopt such reasonable and procedural rules as may be necessary to carry out the duties of the department and its divisions. No rule promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the secretary unless otherwise provided by statute. Unless otherwise provided by statute, no rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by the secretary. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed rule, proposed amendment or repeal of an existing rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation in the state and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. All rules shall be filed in accordance with the State Rules Act.

Section 7. [NEW MATERIAL] ADMINISTRATIVELY ATTACHED AGENCIES.--The following are administratively attached to the department:

A. the human rights commission;

B. the labor and industrial commission; and

C. the state workforce development board.

Section 8. [NEW MATERIAL] DIVISION DIRECTORS.--The secretary shall appoint, with the approval of the governor, directors of such divisions as are established within the department. The positions so appointed are exempt from the Personnel Act.

Section 9. [NEW MATERIAL] BUREAU--CHIEFS.--The secretary shall establish within each division such bureaus as the secretary deems necessary to carry out the provisions of the Workforce Solutions Department Act. The secretary shall employ a chief to be administrative head of each bureau.

Section 10. [NEW MATERIAL] PERSONNEL ACT COVERAGE.--All employees and positions in the department, except for the positions of secretary and division directors and other positions expressly permitted to be exempt by the Personnel Act, shall be covered by and shall be subject to the provisions of the Personnel Act. The secretary is the appointing authority.

Section 11. [NEW MATERIAL] COOPERATION WITH FEDERAL GOVERNMENT--AUTHORITY OF SECRETARY--SINGLE STATE AGENCY STATUS.--

A. The department is authorized to cooperate with the federal government in the administration of employment, training and public assistance programs under the jurisdiction of the department in which financial or other participation by the federal government is authorized or mandated under federal laws, regulations, rules or orders. The secretary may enter into agreements with agencies of the federal government to implement employment, training and public assistance programs subject to availability of appropriated state funds and any provisions of state laws applicable to such agreements or participation by the state.

B. The governor or the secretary may designate the department or any organizational unit of the department as the single state agency for the administration of any employment, training or public assistance program, either by the governor's or the secretary's own discretion or when such designation is a condition of federal financial or other participation in the program under applicable federal law, regulation, rule or order. No designation of a single state agency under the authority granted in this section shall be made in contravention of state law.

Section 12. [NEW MATERIAL] ADVISORY COMMITTEES.--The secretary, with the consent of the governor, may create advisory committees in accordance with the provisions of Section 9-1-9 NMSA 1978. The secretary shall appoint the members of advisory committees with the consent of the governor. If the existence of an advisory committee, its representational membership requirements or other matters are required or specified under any federal law, regulation, rule or order as a condition for receiving federal funds for any program administered by the department, the secretary and the governor shall comply with such requirements in creating the advisory committee.

Section 13. [NEW MATERIAL] ORGANIZATIONAL UNITS OF DEPARTMENT--POWERS AND DUTIES SPECIFIED BY LAW--ACCESS TO INFORMATION.--Those organizational units of the department and the officers of those units specified by law shall have all the powers and duties enumerated in the specific laws assigned to their organizational units for administration. However, the carrying out of those powers and duties shall be subject to the direction and supervision of the secretary, and the secretary shall retain the final decision-making authority and responsibility in accordance with the provisions of Subsection B of Section 6 of the Workforce Solutions Department Act. The department shall have access to all records, data and information of other departments, agencies and institutions, including its own organizational units not specifically held confidential by law.

Section 14. [NEW MATERIAL] DISCLOSURE OF INFORMATION.--To the extent permitted by federal law, upon the written request of a corporation organized pursuant to the Educational Assistance Act, the department shall furnish the last known address and the date of that address of every person certified to the department as being an absent obligor of an educational debt that is due and owed to the corporation or that the corporation has lawfully contracted to collect. The corporation and its officers and employees shall use such information only for the purpose of enforcing the educational debt obligation of such absent obligors and shall not disclose that information or use it for any other purpose.

Section 15. Section 7-1-8 NMSA 1978 (being Laws 1965, Chapter 248, Section 13, as amended by Laws 2005, Chapter 107, Section 1 and by Laws 2005, Chapter 108, Section 2 and also by Laws 2005, Chapter 109, Section 2) is amended to read:

"7-1-8. CONFIDENTIALITY OF RETURNS AND OTHER INFORMATION.--It is unlawful for an employee of the department or a former employee of the department to reveal to an individual other than another employee of the department information contained in the return of a taxpayer made pursuant to a law subject to administration and enforcement under the provisions of the Tax Administration Act or any other information about a taxpayer acquired as a result of the employee's employment by the department and not available from public sources, except:

A. to an authorized representative of another state; provided that the receiving state has entered into a written agreement with the department to use the information for tax purposes only and that the receiving state has enacted a confidentiality statute similar to this section to which the representative is subject;

B. to a representative of the secretary of the treasury or the secretary's delegate pursuant to the terms of a reciprocal agreement entered into with the federal government for exchange of the information;

C. to the multistate tax commission or its authorized representative; provided that the information is used for tax purposes only and is disclosed by the multistate tax commission only to states that have met the requirements of Subsection A of this section;

D. to another jurisdiction pursuant to an international fuel tax agreement; provided that the information is used for tax purposes only;

E. to a district court, an appellate court or a federal court:

(1) in response to an order thereof in an action relating to taxes or an action for tax fraud or any other crime that may affect taxes due to the state to which the state is a party and in which the information sought is about a taxpayer who is party to the action and is material to the inquiry, in which case only that information may be required to be produced in court and admitted in evidence subject to court order protecting the confidentiality of the information and no more;

(2) in an action in which the department is attempting to enforce an act with which the department is charged or to collect a tax; or

(3) in any matter in which the department is a party and the taxpayer has put the taxpayer's own liability for taxes at issue, in which case only that information regarding the taxpayer who is party to the action may be produced, but this shall not prevent the disclosure of department policy or interpretation of law arising from circumstances of a taxpayer who is not a party;

F. to the taxpayer or to the taxpayer's authorized representative; provided, however, that nothing in this subsection shall be construed to require any employee to testify in a judicial proceeding except as provided in Subsection E of this section;

G. information obtained through the administration of a law not subject to administration and enforcement under the provisions of the Tax Administration Act to the extent that release of that information is not otherwise prohibited by law;

H. in a manner, for statistical purposes, that the information revealed is not identified as applicable to an individual taxpayer;

I. with reference to information concerning the tax on tobacco imposed by Sections 7-12-1 through [7-12-13] 7-12-12, 7-12-15 and 7-12-17 NMSA 1978 to a committee of the legislature for a valid legislative purpose or to the attorney general for purposes of Section 6-4-13 NMSA 1978 and the master settlement agreement defined in Section 6-4-12 NMSA 1978;

J. to a transferee, assignee, buyer or lessor of a liquor license, the amount and basis of an unpaid assessment of tax for which the transferor, assignor, seller or lessee is liable;

K. to a purchaser of a business as provided in Sections 7-1-61 through 7-1-63 NMSA 1978, the amount and basis of an unpaid assessment of tax for which the purchaser's seller is liable;

L. to a municipality of this state upon its request for a period specified by that municipality within the twelve months preceding the request for the information by that municipality:

(1) the names, taxpayer identification numbers and addresses of registered gross receipts taxpayers reporting gross receipts for that municipality under the Gross Receipts and Compensating Tax Act or a local option gross receipts tax imposed by that municipality. The department may also release the information described in this paragraph quarterly or upon such other periodic basis as the secretary and the municipality may agree; and

(2) information indicating whether persons shown on a list of businesses located within that municipality furnished by the municipality have reported gross receipts to the department but have not reported gross receipts for that municipality under the Gross Receipts and Compensating Tax Act or a local option gross receipts tax imposed by that municipality.

The employees of municipalities receiving information as provided in this subsection shall be subject to the penalty contained in Section 7-1-76 NMSA 1978 if that information is revealed to individuals other than other employees of the municipality in question or the department;

M. to the commissioner of public lands for use in auditing that pertains to rentals, royalties, fees and other payments due the state under land sale, land lease or other land use contracts; the commissioner of public lands and employees of the commissioner are subject to the same provisions regarding confidentiality of information as employees of the department;

N. the department shall furnish, upon request by the child support enforcement division of the human services department, the last known address with date of all names certified to the department as being absent parents of children receiving public financial assistance. The child support enforcement division personnel shall use such information only for the purpose of enforcing the support liability of the absent parents and shall not use the information or disclose it for any other purpose; the child support enforcement division and its employees are subject to the provisions of this section with respect to any information acquired from the department;

[N.] O. the department shall furnish to the information systems division of the general services department, by electronic media, a database containing New Mexico personal income tax filers by county, which shall be updated quarterly. The database information shall be used only for the purpose of producing the random jury list for the selection of petit or grand jurors for the state courts pursuant to Section 38-5-3 NMSA 1978. The database shall not contain any financial information. If any information in the database is revealed by an employee of the administrative office of the courts or the information systems division to individuals other than employees of the administrative office of the courts, the state courts, the information systems division or the department, the employee shall be subject to the penalty provisions of Section 7-1-76 NMSA 1978;

[O.] P. with respect to the tax on gasoline imposed by the Gasoline Tax Act, the department shall make available for public inspection at monthly intervals a report covering the number of gallons of gasoline and ethanol blended fuels received and deducted and the amount of tax paid by each person required to file a gasoline tax return or pay gasoline tax in the state of New Mexico;

[P.] Q. the identity of a rack operator, importer, blender, supplier or distributor and the number of gallons reported on returns required under the Gasoline Tax Act, Special Fuels Supplier Tax Act or Alternative Fuel Tax Act to a rack operator, importer, blender, distributor or supplier, but only when it is necessary to enable the department to carry out its duties under the Gasoline Tax Act, the Special Fuels Supplier Tax Act or the Alternative Fuel Tax Act;

[Q.] R. the department shall release upon request only the names and addresses of all gasoline or special fuel distributors, wholesalers and retailers to the New Mexico department of agriculture, the employees of which are thereby subject to the penalty contained in Section 7-1-76 NMSA 1978 if that information is revealed to individuals other than employees of either the New Mexico department of agriculture or the department;

[R.] S. the department shall answer all inquiries concerning whether a person is or is not a registered taxpayer for tax programs that require registration, but nothing in this [section] subsection shall be construed to allow the department to answer inquiries concerning whether a person has filed a tax return;

[S.] T. upon request of a municipality or county of this state, the department shall permit officials or employees of the municipality or county to inspect the records of the department pertaining to an increase or decrease to a distribution or transfer made pursuant to Section 7-1-6.15 NMSA 1978 for the purpose of reviewing the basis for the increase or decrease. The municipal or county officials or employees receiving information provided in this subsection shall not reveal that information to any person other than another employee of the municipality or the county, the department or a district court, an appellate court or a federal court in a proceeding relating to a disputed distribution and in which both the state and the municipality or county are parties. Information provided pursuant to provisions of this subsection that is revealed other than as provided in this subsection shall subject the person revealing the information to the penalty contained in Section 7-1-76 NMSA 1978;

[T.] U. to a county of this state that has in effect a local option gross receipts tax imposed by the county upon its request for a period specified by that county within the twelve months preceding the request for the information by that county:

(1) the names, taxpayer identification numbers and addresses of registered gross receipts taxpayers reporting gross receipts either for that county in the case of a local option gross receipts tax imposed on a countywide basis or only for the areas of that county outside of any incorporated municipalities within that county in the case of a county local option gross receipts tax imposed only in areas of the county outside of any incorporated municipalities. The department may also release the information described in this paragraph quarterly or upon such other periodic basis as the secretary and the county may agree;

(2) in the case of a local option gross receipts tax imposed by a county on a countywide basis, information indicating whether persons shown on a list of businesses located within the county furnished by the county have reported gross receipts to the department but have not reported gross receipts for that county under the Gross Receipts and Compensating Tax Act or a local option gross receipts tax imposed by that county on a countywide basis; and

(3) in the case of a local option gross receipts tax imposed by a county only on persons engaging in business in that area of the county outside of incorporated municipalities, information indicating whether persons on a list of businesses located in that county outside of the incorporated municipalities but within that county furnished by the county have reported gross receipts to the department but have not reported gross receipts for that county outside of the incorporated municipalities within that county under the Gross Receipts and Compensating Tax Act or a local option gross receipts tax imposed by the county only on persons engaging in business in that county outside of the incorporated municipalities.

The officers and employees of counties receiving information as provided in this subsection shall be subject to the penalty contained in Section 7-1-76 NMSA 1978 if the information is revealed to individuals other than other officers or employees of the county in question or the department;

[U.] V. to authorized representatives of an Indian nation, tribe or pueblo, the territory of which is located wholly or partially within New Mexico, pursuant to the terms of a reciprocal agreement entered into with the Indian nation, tribe or pueblo for the exchange of that information for tax purposes only; provided that the Indian nation, tribe or pueblo has enacted a confidentiality statute similar to this section;

[V.] W. information with respect to the taxes or tax acts administered pursuant to Subsection B of Section 7-1-2 NMSA 1978, except that:

(1) information for or relating to a period prior to July 1, 1985 with respect to Sections 7-25-1 through 7-25-9 and 7-26-1 through 7-26-8 NMSA 1978 may be released only to a committee of the legislature for a valid legislative purpose;

(2) except as provided in Paragraph (3) of this subsection, contracts and other agreements between the taxpayer and other parties and the proprietary information contained in those contracts and agreements shall not be released without the consent of all parties to the contract or agreement; and

(3) audit workpapers and the proprietary information contained in the workpapers shall not be released except to:

(a) the minerals management service of the United States department of the interior, if production occurred on federal land;

(b) a person having a legal interest in the property that is subject to the audit;

(d) the authorized representative of any of the persons in Subparagraphs (a) through (c) of this paragraph. This paragraph does not prohibit the release of proprietary information contained in the workpapers that is also available from returns or from other sources not subject to the provisions of this section;

[W.] X. information with respect to the taxes, surtaxes, advance payments or tax acts administered pursuant to Subsection C of Section 7-1-2 NMSA 1978;

[X.] Y. to the public regulation commission, information with respect to the Corporate Income and Franchise Tax Act required to enable the commission to carry out its duties;

[Y.] Z. to the state racing commission, information with respect to the state, municipal and county gross receipts taxes paid by racetracks;

[Z.] AA. upon request of a corporation authorized to be formed under the Educational Assistance Act, the department shall furnish the last known address and the date of that address of every person certified to the department as an absent obligor of an educational debt due and owed to the corporation or that the corporation has lawfully contracted to collect. The corporation and its officers and employees shall use that information only to enforce the educational debt obligation of the absent obligors and shall not disclose that information or use it for any other purpose;

[AA.] BB. a decision and order made by a hearing officer pursuant to Section 7-1-24 NMSA 1978 with respect to a protest filed with the secretary on or after July 1, 1993;

[BB.] CC. information required by a provision of the Tax Administration Act to be made available to the public by the department;

[CC.] DD. upon request by the Bernalillo county metropolitan court, the department shall furnish the last known address and the date of that address for every person the court certifies to the department as a person who owes fines, fees or costs to the court or who has failed to appear pursuant to a court order or a promise to appear;

[DD.] EE. upon request by a magistrate court, the department shall furnish the last known address and the date of that address for every person the court certifies to the department as a person who owes fines, fees or costs to the court or who has failed to appear pursuant to a court order or a promise to appear;

[EE.] FF. to the national tax administration agencies of Mexico and Canada; provided the agency receiving the information has entered into a written agreement with the department to use the information for tax purposes only and is subject to a confidentiality statute similar to this section;

[FF.] GG. to a district attorney, a state district court grand jury or federal grand jury for an investigation of or proceeding related to an alleged criminal violation of the tax laws;

[GG.] HH. to a third party subject to a subpoena or levy issued pursuant to the provisions of the Tax Administration Act, the identity of the taxpayer involved, the taxes or tax acts involved and the nature of the proceeding;

[HH.] II. to the gaming control board, tax returns of license applicants and their affiliates as provided in Subsection E of Section 60-2E-14 NMSA 1978; [and

II.] JJ. any written ruling on questions of evidence or procedure made by a hearing officer pursuant to Section 7-1-24 NMSA 1978; provided that the name and identification number of the taxpayer requesting the ruling shall not be [provided] disclosed;

[II.] KK. to representatives of the workers' compensation administration, authorized by the director of the workers' compensation administration for this purpose, to facilitate the identification of taxpayers that are delinquent or noncompliant in payment of fees required by Section 52-1-9.1 or 52-5-19 NMSA 1978;

[JJ.] LL. to the secretary of [labor] workforce solutions or the secretary's delegate for use in enforcement of unemployment insurance collections pursuant to the terms of a reciprocal agreement entered into with the secretary of [labor] workforce solutions for exchange of information; the secretary of [labor] workforce solutions and employees of the [labor] workforce solutions department are subject to the provisions regarding confidentiality of information contained in the Tax Administration Act; and

[KK.] MM. information that the department is authorized by the Tax Administration Act to release to a local body that licenses professions or occupations pursuant to Chapter 36, Article 2 NMSA 1978 or Chapter 61 NMSA 1978."

Section 16. Section 7-2-18.5 NMSA 1978 (being Laws 1998, Chapter 97, Section 2) is amended to read:

"7-2-18.5. WELFARE-TO-WORK TAX CREDIT.--

A. Any taxpayer who files an individual New Mexico income tax return and is not a dependent of another taxpayer and is entitled to claim the federal welfare-to-work credit provided by 26 U.S.C. Section 51A with respect to a state-qualified employee in a state-qualified job may take a tax credit equal to fifty percent of the amount of the welfare-to-work credit claimed and allowed under 26 U.S.C. Section 51A with respect to that employee in that job.

B. To be eligible for the credit provided by this section, a taxpayer must be in compliance with the following provisions:

(1) the hiring of any state-qualified employee shall not result in the displacement of any currently employed worker or position, including partial displacement such as a reduction in the hours of nonovertime work, wages or employment benefits, or in any infringement of the promotional opportunities of any currently employed individual;

(2) the hiring of any state-qualified employee shall not impair existing contracts for services or collective bargaining agreements, and no employment under the terms of this [act] section shall be inconsistent with the terms of a collective bargaining agreement or involve the performance of duties covered under a collective bargaining agreement unless the employer and the labor organization concur in writing;

(3) a state-qualified employee may fill or perform the duties of an employment position only in a manner that is consistent with existing laws, personnel procedures and collective bargaining contracts;

(4) no state-qualified employee shall be employed or assigned:

(a) when any other individual is on layoff from the same or any substantially equivalent job;

(b) if the employer has terminated the employment of any regular employee or otherwise caused an involuntary reduction of its workforce with the effect of filling the vacancy so created with a state-qualified employee; or

(5) state-qualified employees shall be paid a wage that is substantially like the wage paid for similar jobs with the employer with appropriate adjustments for experience and training but not less than the federal minimum hourly wage; and

(6) employers shall:

(a) maintain health, safety and working conditions not less than those of comparable jobs offered by the employer; and

(b) maintain standard and customary entry-level wages and benefits and apply historical and normal increases in wages and benefits appropriate for experience and training of the state-qualified employee.

C. For the purposes of this section:

(1) "high-unemployment county" means a county in which the unemployment rate as reported by the [labor] workforce solutions department exceeds ten percent in six or more months of the calendar year preceding the year for which the tax credit provided by this section is claimed;

(2) "state-qualified employee" means a "long-term family assistance recipient", as that term is defined in 26 U.S.C. Section 51A(c), who resides in a high-unemployment county during the period of employment for which the welfare-to-work credit provided by 26 U.S.C. Section 51A applies with respect to that employee; and

(3) "state-qualified job" means a job established by the taxpayer that:

(a) when first occupied by a state-qualified employee results in the total number of the taxpayer's employees exceeding the average number of the taxpayer's employees during the taxpayer's preceding tax year; or

(b) was a position previously filled by a state-qualified employee and was vacant prior to the hiring of the new state-qualified employee in that position. D. The [labor] workforce solutions department shall determine whether the employee is a state-qualified employee and whether the job is a state-qualified job and, if the employee is a state-qualified employee and the job is a state-qualified job, certify that fact to the employer. The taxpayer claiming the tax credit provided by this section shall provide a copy of the certification with respect to each employee for which the tax credit is claimed.

E. By July 1, 1998 and by January 31 of each subsequent year, the [labor] workforce solutions department shall certify to the taxation and revenue department the high-unemployment counties for the preceding calendar year.

F. A husband and wife who file separate returns for a taxable year in which they could have filed a joint return may each claim only one-half of the tax credit provided by this section that would have been allowed on a joint return.

G. A taxpayer who otherwise qualifies may claim [his] the taxpayer's pro rata share of the tax credit provided by this section with respect to state-qualified employees employed by a partnership or other business association of which the taxpayer is a member. The total tax credit claimed by all members of the partnership or association shall not exceed the amount of tax credit provided pursuant to Subsection A of this section with respect to each state-qualified employee for which the credit is allowed.

H. The tax credit provided by this section may only be deducted from the taxpayer's income tax liability. Any portion of the tax credit provided by this section that remains unused at the end of the taxpayer's taxable year may be carried forward for three consecutive taxable years."

Section 17. Section 7-2A-8.8 NMSA 1978 (being Laws 1998, Chapter 97, Section 3) is amended to read:

"7-2A-8.8. WELFARE-TO-WORK TAX CREDIT.--

A. Any taxpayer [who] that files a New Mexico corporate income tax return and [who] that is entitled to claim the federal welfare-to-work credit provided by 26 U.S.C. Section 51A with respect to a state-qualified employee in a state-qualified job may take against the taxpayer's corporate income tax liability a tax credit equal to fifty percent of the amount of the welfare-to-work credit claimed and allowed under 26 U.S.C. Section 51A with respect to that employee in that job.

B. To be eligible for the credit provided by this section, a taxpayer must be in compliance with the following provisions:

(4) no state-qualified employee shall be employed or assigned:

(a) when any other individual is on layoff from the same or any substantially equivalent job;

(6) employers shall:

(a) maintain health, safety and working conditions not less than those of comparable jobs offered by the employer; and

C. For the purposes of this section:

(3) "state-qualified job" means a job established by the taxpayer that:

(b) was a position previously filled by a state-qualified employee and was vacant prior to the hiring of the new state-qualified employee in that position.

D. The [labor] workforce solutions department shall determine whether the employee is a state-qualified employee and whether the job is a state-qualified job and, if the employee is a state-qualified employee and the job is a state-qualified job, certify that fact to the employer. The taxpayer claiming the tax credit provided by this section shall provide a copy of the certification with respect to each employee for which the tax credit is claimed.

F. The tax credit provided in this section may only be deducted from the taxpayer's corporate income tax liability. Any portion of the tax credit provided by this section that remains unused at the end of the taxpayer's taxable year may be carried forward for three consecutive taxable years."

Section 18. Section 7-2C-3 NMSA 1978 (being Laws 1985, Chapter 106, Section 3, as amended by Laws 2006, Chapter 52, Section 2 and by Laws 2006, Chapter 53, Section 2) is amended to read:

"7-2C-3. DEFINITIONS.--As used in the Tax Refund Intercept Program Act:

A. "claimant agency" means the taxation and revenue department or any of its divisions, the human services department, the [employment security division of the labor] workforce transition services division of the workforce solutions department, the workers' compensation administration, any corporation authorized to be formed under the Educational Assistance Act, a district, magistrate or municipal court or the Bernalillo county metropolitan court;

B. "debt" means a legally enforceable obligation of an employer subject to the Unemployment Compensation Law, the Workers' Compensation Act and the Workers' Compensation Administration Act, or an individual to pay a liquidated amount of money that:

(1) is equal to or more than one hundred dollars ($100);

(2) is due and owing a claimant agency, which a claimant agency is obligated by law to collect or which, in the case of an educational loan, a claimant agency has lawfully contracted to collect;

(3) has accrued through contract, tort, subrogation or operation of law; and

(4) either:

(a) has been secured by a warrant of levy and lien for amounts due under the Unemployment Compensation Law or workers' compensation fees due under the Workers' Compensation Administration Act; or

(b) has been reduced to judgment for all other cases;

C. "debtor" means any employer subject to the Unemployment Compensation Law, the Workers' Compensation Act and the Workers' Compensation Administration Act, or any individual owing a debt;

D. "department" or "division" means, unless the context indicates otherwise, the taxation and revenue department, the secretary of taxation and revenue or any employee of the department exercising authority lawfully delegated to that employee by the secretary;

E. "educational loan" means any loan for educational purposes owned by a public post-secondary educational institution or owned or guaranteed by any corporation authorized to be formed under the Educational Assistance Act;

F. "medical support" means amounts owed to the human services department pursuant to the provisions of Subsection B of Section 40-4C-12 NMSA 1978;

G. "public post-secondary educational institution" means a publicly owned or operated institution of higher education or other publicly owned or operated post-secondary educational facility located within New Mexico;

H. "spouse" means an individual who is or was a spouse of the debtor and who has joined with the debtor in filing a joint return of income tax pursuant to the provisions of the Income Tax Act, which joint return has given rise to a refund that may be subject to the provisions of the Tax Refund Intercept Program Act; and

I. "refund" means a refund, including any amount of tax rebates or credits, under the Income Tax Act or the Corporate Income and Franchise Tax Act that the department has determined to be due to an individual or corporation."

Section 19. Section 7-2C-11 NMSA 1978 (being Laws 1985, Chapter 106, Section 11, as amended by Laws 2006, Chapter 52, Section 4 and by Laws 2006, Chapter 53, Section 4) is amended to read:

"7-2C-11. PRIORITY OF CLAIMS.--

A. Claims of the department take precedence over the claim of any competing claimant agency, whether the department asserts a claim or sets off an asserted debt under the provisions of the Tax Refund Intercept Program Act or under the provisions of any other law that authorizes the department to apply amounts of tax owed against any refund due an individual pursuant to the Income Tax Act.

B. After claims of the department, claims shall take priority in the following order before claims of any competing claimant agency:

(1) claims of the human services department resulting from child support enforcement liabilities;

(2) claims of the human services department resulting from medical support liabilities;

(3) claims resulting from educational loans made under the Educational Assistance Act;

(4) claims of the human services department resulting from [AFDC] temporary assistance for needy families liabilities;

(5) claims of the human services department resulting from food stamp liabilities;

(6) claims of the [employment security division of the labor] workforce transition services division of the workforce solutions department arising under the Unemployment Compensation Law;

(7) claims of a district court for fines, fees or costs owed to that court;

(8) claims of a magistrate court for fines, fees or costs owed to that court;

(9) claims of the Bernalillo county metropolitan court for fines, fees or costs owed to that court;

(10) claims of a municipal court for fines, fees or costs owed to that court; and

(11) claims of the workers' compensation administration arising under the Workers' Compensation Act or the Workers' Compensation Administration Act."

Section 20. Section 13-4-2 NMSA 1978 (being Laws 1984, Chapter 66, Section 2, as amended) is amended to read:

"13-4-2. RESIDENT CONTRACTOR DEFINED--APPLICATION OF PREFERENCE.--

A. "Resident contractor" means a New Mexico resident contractor or a New York state business enterprise.

B. "New Mexico resident contractor" means any person, firm, corporation or other legal entity if, at the time the contract is advertised for bids and at the time bids are opened, it has all required licenses and meets the following requirements:

(1) if the bidder is a corporation, it shall be incorporated in New Mexico and maintain its principal office and place of business in New Mexico;

(2) if the bidder is a partnership, general or limited, or other legal entity, it shall maintain its principal office and place of business in New Mexico;

(3) if the bidder is an individual, [he] the person shall maintain [his] the principal office and place of the business in New Mexico; or

(4) if a bidder who is a telecommunications company as defined by Subsection M of Section 63-9A-3 NMSA 1978 or an affiliate of a telecommunications company has paid unemployment compensation to the [employment security] workforce transition services division of the [labor] workforce solutions department at the applicable experience rate for that employer pursuant to the Unemployment Compensation Law on no fewer than ten employees who have performed services subject to contributions for the two-year period prior to issuance of notice to bid, the bidder will be considered to have fulfilled the requirements of Paragraph (1), (2) or (3) of this subsection. A successor to a previously qualified New Mexico contractor or resident contractor, where the creation of the bidder resulted from a court order, is entitled to credit for qualifying contributions paid by the previously qualified New Mexico contractor or resident contractor.

C. "New York state business enterprise" means a business enterprise, including a sole proprietorship, partnership or corporation, that offers for sale or lease or other form of exchange, goods or commodities that are substantially manufactured, produced or assembled in New York state, or services, other than construction services, that are substantially performed within New York state. For purposes of construction services, a New York state business enterprise means a business enterprise, including a sole proprietorship, partnership or corporation, that has its principal place of business in New York state.

D. For purposes of this section, "affiliate" means an entity that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with a telecommunications company through ownership of voting securities representing a majority of the total voting power of that entity.

E. When bids are received only from nonresident contractors and resident contractors and the lowest responsible bid is from a nonresident contractor, the contract shall be awarded to the resident contractor whose bid is nearest to the bid price of the otherwise low nonresident contractor if the bid price of the resident contractor is made lower than the bid price of the nonresident contractor when multiplied by a factor of .95.

F. No contractor shall be treated as a resident contractor in the awarding of public works contracts by a state agency or a local public body unless the contractor has qualified with the state purchasing agent as a resident contractor pursuant to this section by making application to the state purchasing agent and receiving from [him] the state purchasing agent a certification number. The procedure for application and certification is as follows:

(1) the state purchasing agent shall prepare an application form for certification as a resident contractor, requiring such information and proof as [he deems] necessary to qualify the applicant under the terms of this section;

(2) the contractor seeking to qualify as a resident contractor shall complete the application form and submit it to the state purchasing agent prior to the submission of a bid on which the contractor desires to be given a preference;

(3) the state purchasing agent shall examine the application and if necessary may seek additional information or proof so as to be assured that the prospective contractor is indeed entitled to certification as a resident contractor. If the application is in proper form, the state purchasing agent shall issue the contractor a distinctive certification number [which] that is valid until revoked and [which] when used on bids and other purchasing documents for state agencies or local public bodies, entitles the contractor to treatment as a resident contractor under Subsection E of this section; and

(4) the certification number issued pursuant to Paragraph (3) of this subsection shall be revoked by the state purchasing agent upon making a determination that the contractor no longer meets the requirements of a resident contractor as defined in this section."

Section 21. Section 13-4-11 NMSA 1978 (being Laws 1965, Chapter 35, Section 1, as amended) is amended to read:

"13-4-11. MINIMUM WAGES ON PUBLIC WORKS--WEEKLY PAYMENT--POSTING WAGE SCALE--WITHHOLDING FUNDS.--

A. Every contract or project in excess of sixty thousand dollars ($60,000) that the state or any political subdivision thereof is a party to for construction, alteration, demolition or repair or any combination of these, including painting and decorating, of public buildings, public works or public roads of the state and that requires or involves the employment of mechanics, laborers or both shall contain a provision stating the minimum wages to be paid to various classes of laborers and mechanics, which shall be based upon the wages that will be determined by the [director of the] labor [and industrial] relations division of the [labor] workforce solutions department to be prevailing for the corresponding classes of laborers and mechanics employed on contract work of a similar nature in the state or locality, and every contract or project shall contain a stipulation that the contractor, subcontractor, employer or a person acting as a contractor shall pay all mechanics and laborers employed on the site of the project, unconditionally and not less often than once a week and without subsequent unlawful deduction or rebate on any account, the full amounts accrued at time of payment computed at wage rates not less than those stated in the minimum wage rates issued for the project.

B. For the purpose of making wage determinations, the [director of the] labor [and industrial] relations division [of the labor department] shall conduct a continuing program for the obtaining and compiling of wage-rate information and shall encourage the voluntary submission of wage-rate data by contractors, contractors' associations, labor organizations, interested persons and public officers. Before making a determination of wage rates for any project, the [director] division shall give due regard to the information thus obtained. Whenever the [director] division deems that the data at hand are insufficient to make a wage determination, the [director] division may have a field survey conducted for the purpose of obtaining sufficient information upon which to make determination of wage rates. Any interested person shall have the right to submit to the [director] division written data, views and arguments why the wage determination should be changed.

C. The scale of wages to be paid shall be posted by the contractor or person acting as a contractor in a prominent and easily accessible place at the site of the work; and it is further provided that there may be withheld from the contractor, subcontractor, employer or a person acting as a contractor so much of accrued payments as may be considered necessary by the contracting officer of the state or political subdivision to pay to laborers and mechanics employed on the project the difference between the rates of wages required by the [director of the] labor [and industrial] relations division [of the labor department] to be paid to laborers and mechanics on the work and the rates of wages received by such laborers and mechanics and not refunded to the contractor, subcontractor, employer or a person acting as a contractor or their agents.

D. Notwithstanding any other provision of law applicable to public works contracts or agreements, [the director of] the labor [and industrial] relations division [of the labor department] may, with cause:

(1) issue investigative or hearing subpoenas for the production of documents or witnesses pertaining to public works prevailing wage projects; and

(2) attach and prohibit the release of any assurance of payment required under Section 13-4-18 NMSA 1978 for a reasonable period of time beyond the time limits specified in that section until the [director] division satisfactorily resolves any probable cause to believe a violation of the Public Works Minimum Wage Act or its implementing rules has taken place.

E. [The director of] The labor [and industrial] relations division [of the labor department] shall issue rules necessary to administer and accomplish the purposes of the Public Works Minimum Wage Act."

Section 22. Section 13-4-12 NMSA 1978 (being Laws 1965, Chapter 35, Section 2, as amended) is amended to read:

"13-4-12. DEFINITION OF THE TERM "WAGES".--

A. As used in Section 13-4-11 NMSA 1978, "wages", "scale of wages", "wage rates", "minimum wages" and "prevailing wages" include:

(1) the basic hourly rate of pay; and

(2) the amount of:

(a) the rate of contribution irrevocably made by a contractor, subcontractor, employer or any person acting as a contractor to a trustee or a third person pursuant to a fund, plan or program; and

(b) the rate of costs to a contractor, subcontractor, employer or a person acting as a contractor that reasonably may be anticipated in providing benefits to laborers and mechanics pursuant to an enforceable commitment to carry out a financially responsible plan or program that was communicated in writing to the laborers and mechanics affected for: 1) medical or hospital care; 2) pensions on retirement or death; 3) compensation for injuries or illness resulting from occupational activity; or 4) insurance to provide for any of the foregoing; and for: 5) unemployment benefits; 6) life insurance; 7) disability and sickness insurance; 8) accident insurance; 9) vacation and holiday pay; 10) costs of apprenticeship or other similar programs; or for 11) other bona fide fringe benefits; but only where the contractor, subcontractor, employer or a person acting as a contractor is not required by other federal, state or local law to provide any of the foregoing or similar benefits.

B. The obligation of a contractor, subcontractor, employer or person acting as a contractor to make payment in accordance with the prevailing wage determinations of [the director of] the labor [and industrial] relations division of the [labor] workforce solutions department, insofar as Section 13-4-11 NMSA 1978 or other sections of legislative acts incorporating Section 13-4-11 NMSA 1978 are concerned, may be discharged by the making of payments consistent with Subsection B of Section 50-4-2 NMSA 1978, except that the frequency of payments shall comply with Subsection A of Section 13-4-11 NMSA 1978. The payments shall include:

(1) payment of the base wage rate as the [director of the] labor [and industrial] relations division [of the labor department] has determined to be prevailing for the appropriate class of laborers or mechanics; and

(2) the making of contributions of a type referred to in Subparagraph (a) of Paragraph (2) of Subsection A of this section; or

(3) the assumption of an enforceable commitment to bear the costs of a plan or program of a type referred to in Subparagraph (b) of Paragraph (2) of Subsection A of this section; or

(4) any combination of Paragraphs (2) and (3) of this subsection where the aggregate of any payments or contributions and costs therefor is not less than the rate of pay described in Section 13-4-11 NMSA 1978 plus the amount referred to in this section.

C. The provisions of this section shall not affect existing contracts or contracts resulting from bids outstanding on July 15, 1965."

Section 23. Section 13-4-13 NMSA 1978 (being Laws 1965, Chapter 35, Section 3, as amended) is amended to read:

"13-4-13. FAILURE TO PAY MINIMUM WAGE--TERMINATION OF CONTRACT.--Every contract within the scope of the Public Works Minimum Wage Act shall contain further provision that in the event it is found by [the director of] the labor [and industrial] relations division of the [labor] workforce solutions department that any laborer or mechanic employed on the site of the project has been or is being paid as a result of a willful violation a rate of wages less than the rate of wages required, the contracting agency may, by written notice to the contractor, subcontractor, employer or person acting as a contractor, terminate [their] the right to proceed with the work or such part of the work as to which there has been a willful failure to pay the required wages, and the contracting agency may prosecute the work to completion by contract or otherwise, and the contractor or person acting as a contractor and [his] the contractor's or person's sureties shall be liable to the state for any excess costs occasioned thereby. Any party receiving notice of termination of [his] a project or subcontract under the provisions of this section may appeal the finding of the director as provided in the Public Works Minimum Wage Act."

Section 24. Section 13-4-13.1 NMSA 1978 (being Laws 2004, Chapter 89, Section 1, as amended) is amended to read:

"13-4-13.1. PUBLIC WORKS CONTRACTS--REGISTRATION OF CONTRACTORS AND SUBCONTRACTORS.--

A. Except as otherwise provided in this subsection, in order to submit a bid valued at more than fifty thousand dollars ($50,000) in order to respond to a request for proposals or to be considered for award of any portion of a public works project greater than fifty thousand dollars ($50,000) for a public works project that is subject to the Public Works Minimum Wage Act, the contractor, serving as a prime contractor or not, shall be registered with the labor [and industrial] relations division of the [labor] workforce solutions department. Bidding documents issued or released by a state agency or political subdivision of the state shall include a clear notification that each contractor, prime contractor or subcontractor is required to be registered pursuant to this subsection. The provisions of this section do not apply to vocational classes in public schools or public post-secondary educational institutions.

B. The state or any political subdivision of the state shall not accept a bid on a public works project subject to the Public Works Minimum Wage Act from a prime contractor that does not provide proof of required registration for itself.

C. Contractors and subcontractors may register with the labor relations division on a form provided by the division and in accordance with [labor] department rules. The division shall charge an annual registration fee of two hundred dollars ($200). The division shall issue to the applicant a certificate of registration within fifteen days after receiving from the applicant the completed registration form and the registration fee.

D. Registration fees collected by the labor relations division shall be deposited in the labor enforcement fund."

Section 25. Section 13-4-14 NMSA 1978 (being Laws 1965, Chapter 35, Section 4, as amended) is amended to read:

"13-4-14. PAYMENT OF WAGES FROM FUNDS WITHHELD--LIST OF CONTRACTORS VIOLATING ACT--ADDITIONAL RIGHT OF WAGE EARNERS.--

A. The [director of the] labor [and industrial] relations division of the [labor] workforce solutions department shall certify to the contracting agency the names of persons or firms the [director] division has found to have disregarded their obligations to employees under the Public Works Minimum Wage Act and the amount of arrears. The contracting agency shall pay or cause to be paid to the affected laborers and mechanics, from any accrued payments withheld under the terms of the contract or designated for the project, any wages found due such workers pursuant to the Public Works Minimum Wage Act. The [director] division shall, after notice to the affected persons, distribute a list to all departments of the state giving the names of persons or firms the [director] division has found to have willfully violated the Public Works Minimum Wage Act. No contract or project shall be awarded to the persons or firms appearing on this list or to any firm, corporation, partnership or association in which the persons or firms have an interest until three years have elapsed from the date of publication of the list containing the names of the persons or firms. A person to be included on the list to be distributed may appeal the finding of the [director] division as provided in the Public Works Minimum Wage Act.

B. If the accrued payments withheld under the terms of the contract, as mentioned in Subsection A of this section, are insufficient to reimburse all the laborers and mechanics with respect to whom there has been a failure to pay the wages required pursuant to the Public Works Minimum Wage Act, the laborers and mechanics shall have the right of action or intervention or both against the contractor or person acting as a contractor and [his] the contractor's or person's sureties, conferred by law upon such persons furnishing labor and materials, and, in such proceeding, it shall be no defense that the laborers and mechanics accepted or agreed to less than the required rate of wages or voluntarily made refunds. The [director of the] labor [and industrial] relations division [of the labor department] shall refer such matters to the district attorney in the appropriate county, and it is the duty and responsibility of the district attorney to bring civil suit for wages due and liquidated damages provided for in Subsection C of this section.

C. In the event of any violation of the Public Works Minimum Wage Act or implementing rules, the contractor, subcontractor, employer or a person acting as a contractor responsible for the violation shall be liable to any affected employee for the employee's unpaid wages. In addition, the contractor, subcontractor, employer or a person acting as a contractor shall be liable to any affected employee for liquidated damages beginning with the first day of covered employment in the sum of one hundred dollars [($100.00)] ($100) for each calendar day on which a contractor, subcontractor, employer or person acting as a contractor has willfully required or permitted an individual laborer or mechanic to work in violation of the provisions of the Public Works Minimum Wage Act.

D. In an action brought pursuant to Subsection C of this section, the court may award, in addition to all other remedies, attorney fees and costs to an employee adversely affected by a violation of the Public Works Minimum Wage Act by a contractor, subcontractor, employee or a person acting as a contractor."

Section 26. Section 13-4-14.1 NMSA 1978 (being Laws 2004, Chapter 89, Section 2) is amended to read:

"13-4-14.1. LABOR ENFORCEMENT FUND--CREATION--USE.--The "labor enforcement fund" is created in the state treasury. The fund shall consist of contractor and subcontractor registration fees collected by the labor [and industrial] relations division of the [labor] workforce solutions department and all investment and interest income from the fund. The fund shall be administered by the division, and money in the fund is appropriated to the division for administration and enforcement of the Public Works Minimum Wage Act. Money in the fund shall not revert to the general fund at the end of a fiscal year."

Section 27. Section 13-4-14.2 NMSA 1978 (being Laws 2004, Chapter 89, Section 3) is amended to read:

"13-4-14.2. REGISTRATION CANCELLATION, REVOCATION, SUSPENSION--INJUNCTIVE RELIEF.--The [director of the] labor [and industrial] relations division of the [labor] workforce solutions department may:

A. cancel, revoke or suspend with conditions, including probation, the registration of any party required to be registered pursuant to the Public Works Minimum Wage Act for failure to comply with the registration provisions or for good cause, subject to appeal pursuant to Section 13-4-15 NMSA 1978; and

B. seek injunctive relief in district court for failure to comply with the registration provisions of the Public Works Minimum Wage Act."

Section 28. Section 13-4-15 NMSA 1978 (being Laws 1963, Chapter 304, Section 5, as amended) is amended to read:

"13-4-15. APPEALS.--

A. Any interested person may appeal any determination, finding or action of the [director of the] labor [and industrial] relations division of the [labor] workforce solutions department made pursuant to the Public Works Minimum Wage Act to the labor and industrial commission sitting as the appeals board by filing notice of the appeal with the [director] division within fifteen days after the determination has been issued or notice of the finding or action has been given as provided in the Public Works Minimum Wage Act.

B. The labor and industrial commission, sitting as the appeals board, shall adopt rules as it deems necessary for the prompt disposition of appeals. A copy of the rules shall be filed with the librarian of the supreme court law library.

C. The appeals board, within ten days after the filing of the appeal, shall set the matter for an oral hearing within thirty days and, following the hearing, shall enter a decision within ten days after the close of the hearing and promptly mail copies of the decision to the parties.

D. Decisions of the appeals board may be appealed pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

Section 29. Section 13-4-36 NMSA 1978 (being Laws 1988, Chapter 18, Section 6, as amended) is amended to read:

"13-4-36. SUBSTITUTION OF SUBCONTRACTOR.--

A. No contractor whose bid is accepted shall substitute any person as subcontractor in place of the subcontractor listed in the original bid, except that the using agency shall consent to the substitution of another person as a subcontractor in the following circumstances:

(1) when the subcontractor listed in the bid, after having had a reasonable opportunity to do so, fails or refuses to execute a written contract, when such written contract, based upon the general terms, conditions, plans and specifications for the project involved and the terms of such subcontractor's written bid, is presented to [him] the subcontractor by the contractor;

(2) when the subcontractor listed in the original bid becomes bankrupt or insolvent prior to execution of a subcontract;

(3) when the using agency refuses to approve the subcontractor listed in the original bid, provided such approval has been reserved in the bidding documents;

(4) when the subcontractor listed in the original bid fails or refuses to perform [his] the subcontract;

(5) when the contractor demonstrates to the using agency or its duly authorized officer that the name of the subcontractor was listed as the result of an inadvertent clerical error;

(6) when a bid alternate accepted by the using agency causes the listed subcontractor's bid not to be low;

(7) when the contractor can substantiate to the using agency that a listed subcontractor's bid is incomplete;

(8) when the listed subcontractor fails or refuses to meet the bond requirements of the contractor;

(9) when it is determined that the listed subcontractor does not have a proper license to perform the work and the contractor has submitted the name of the subcontractor along with proof that the subcontractor bid work for which [he] the subcontractor was not licensed by the construction industries division of the regulation and licensing department; or

(10) when it is determined by the using agency, the prime contractor or [the director of] the labor [and industrial] relations division of the [labor] workforce solutions department that a listed subcontractor is not a registered subcontractor on the date bids are unconditionally accepted for consideration.

B. Prior to approval of the contractor's request for substitution of a subcontractor, the using agency shall give notice in writing to the listed subcontractor of the contractor's request to substitute and of the reasons for the request. The notice shall be served by certified or registered mail to the last known address of the subcontractor. The listed subcontractor who has been so notified has five working days within which to submit written objections to the substitution to the using agency. Failure to file written objections shall constitute the listed subcontractor's consent to the substitution. If written objections are filed, the using agency shall give at least five working days notice in writing to the listed subcontractor of a hearing by the using agency on the contractor's request for substitution.

C. No contractor whose bid is accepted shall permit any subcontract to be voluntarily assigned or transferred or allow it to be performed by anyone other than the original subcontractor listed in the original bid without the consent of the using agency.

D. No contractor whose bid is accepted, other than in the performance of change orders causing changes or deviations from the original contract, shall sublet or subcontract any portion of the work in excess of the listing threshold as to which [his] the contractor's original bid did not designate a subcontractor unless:

(1) the contractor fails to receive a bid for a category of work. Under such circumstances, the contractor may subcontract. The contractor shall designate on the listing form that no bid was received; or

(2) the contractor fails to receive more than one bid for a category of work. Under such circumstances, the contractor may subcontract. The contractor shall state on the listing form that only one subcontractor's bid was received, together with the name of the subcontractor. This designation shall not occur more than one time on the subcontractor list."

Section 30. Section 13-4D-1 NMSA 1978 (being Laws 1992, Chapter 74, Section 1) is amended to read:

"13-4D-1. SHORT TITLE.--[This act] Chapter 13, Article 4D NMSA 1978 may be cited as the "Public Works Apprentice and Training Act"."

Section 31. Section 13-4D-3 NMSA 1978 (being Laws 1992, Chapter 74, Section 3) is amended to read:

"13-4D-3. DEFINITIONS.--As used in the Public Works Apprentice and Training Act:

A. "approved apprentice and training programs" means building trades apprenticeship and training programs in New Mexico that are recognized by the bureau of apprenticeship and training of the United States department of labor or the New Mexico apprenticeship council;

B. "compliance statement" means a monthly record of an employer's contributions paid into an approved apprentice and training program in New Mexico or into the public works apprentice and training fund;

C. "director" or "division" means [the director of] the labor [and industrial] relations division of the [labor] workforce solutions department; and

D. "employer" means a contractor, subcontractor or any person acting as a contractor on a public works project, as that term is defined in the provisions of the Construction Industries Licensing Act."

Section 32. Section 13-4D-4 NMSA 1978 (being Laws 1992, Chapter 74, Section 4) is amended to read:

"13-4D-4. ADMINISTRATION.--

A. The Public Works Apprentice and Training Act shall be administered by the [public works bureau of the labor and industrial] division [of the labor department]. The [bureau] division shall collect employers' contributions in accordance with [this] that act, review employers' compliance statements, review certified payroll reports to verify training contributions, investigate allegations of and impose penalties for employer noncompliance and disburse funds as provided in Section [5 of the Public Works Apprentice and Training Act] 13-4D-5 NMSA 1978.

B. Public works construction projects, except for street, highway, bridge, road, utility or maintenance contracts with employers who elect not to participate in training, shall not be constructed unless an employer agrees to make contributions to approved apprentice and training programs in New Mexico in which the employer is a participant or to the public works apprentice and training fund administered by the [public works bureau of the labor and industrial] division [of the labor department]. Contributions shall be made in the same manner and in the same amount as apprentice and training contributions required pursuant to wage rate determinations made by the [director] division.

C. The [director] division shall adopt rules [and regulations] necessary to implement the provisions of the Public Works Apprentice and Training Act."

Section 33. Section 13-4D-5 NMSA 1978 (being Laws 1992, Chapter 74, Section 5, as amended) is amended to read:

"13-4D-5. FUND CREATED--DISBURSEMENT OF FUNDS.--[There is created] The "public works apprentice and training fund" [in the labor and industrial division of the labor department] is created as a nonreverting fund in the state treasury. Contributions into the fund shall be as provided under the provisions of Section 13-4D-4 NMSA 1978. Funds contributed under the provisions of the Public Works Apprentice and Training Act shall be distributed in the following manner:

A. no more than fifteen percent of the funds may be used by the [public works bureau of the labor and industrial] division [of the labor department] to hire staff to administer the funds collected by the division; and

B. the remainder of the funds shall be used for approved apprentice and training programs in New Mexico. The [labor and industrial] division [of the labor department] shall develop an annual budget and, subject to appropriation by the legislature in the general appropriation act, shall disburse funds to approved apprentice and training programs in New Mexico, taking into account participant contact hours of classroom instruction and on-the-job training for the preceding year, to be not less than ninety percent of one hundred forty-four contact hours of classroom instruction per participant per school year and not less than one thousand hours of on-the-job training per twelve-month period. Notwithstanding any language in the general appropriation act that otherwise limits budget adjustments, if the fund balance available for disbursement to approved programs exceeds the amount appropriated, pursuant to Sections 6-3-23 through 6-3-25 NMSA 1978, the [labor] workforce solutions department may request budget increases up to the excess fund balance for distribution to the programs."

Section 34. Section 13-4D-6 NMSA 1978 (being Laws 1992, Chapter 74, Section 6) is amended to read:

"13-4D-6. NOTICE TO EMPLOYERS--PUBLICATION OF PROGRAMS.--

A. An employer's contribution requirement under the provisions of the Public Works Apprentice and Training Act shall be included with all minimum wage determinations issued by the [labor and industrial] division [of the labor department] on all public works construction projects. The [director] division shall also provide the contribution rate for approved apprentice and training programs, and that information shall be part of the public works construction projects.

B. The [labor and industrial] division [of the labor department] shall publish a list of approved apprentice and training programs in New Mexico."

Section 35. Section 13-4D-7 NMSA 1978 (being Laws 1992, Chapter 74, Section 7, as amended) is amended to read:

"13-4D-7. NONCOMPLIANCE--PENALTIES.--An employer who willfully and knowingly fails to comply with the requirements of the Public Works Apprentice and Training Act shall be subject to the following penalties:

A. a noncomplying employer shall pay a civil penalty of ten dollars ($10.00) for every calendar day of noncompliance, and the penalty shall be imposed and collected for deposit into the public works apprentice and training fund by the [public works bureau of the labor and industrial] division [of the labor department];

B. a noncomplying employer shall have the unpaid contributions, as required under the provisions of the Public Works Apprentice and Training Act, withheld as provided in Subsections A and B of Section 13-4-14 NMSA 1978; and

C. a noncomplying employer shall not be permitted to bid on any public works contracts as provided in Subsections A and B of Section 13-4-14 NMSA 1978."

Section 36. Section 21-19-7 NMSA 1978 (being Laws 1983, Chapter 299, Section 1, as amended) is amended to read:

"21-19-7. DEVELOPMENT TRAINING.--

A. The economic development department shall establish a development training program that provides

quick-response classroom training, in-plant training and skill-enhancement training to furnish qualified [manpower] workforce resources for new or expanding industries, nonretail service sector businesses and film and multimedia production companies in New Mexico that have business or production procedures that require skills unique to those industries. Training shall be custom designed for, and based on the special requirements of, each company or preemployment training program for the film and multimedia industry. The program shall be operated on a statewide basis and shall be designed to assist any area in becoming more competitive economically.

B. [There is created] The "industrial training board" is created, composed of:

(1) the director of the economic development division of the economic development department;

(2) the director of the instructional support and vocational education division of the public education department;

(3) [the director of the governor's office of workforce training and development] a representative of the state workforce development board;

(4) the [executive director of the commission on] secretary of higher education;

(5) an employee of the workforce solutions department [of labor];

(6) one member from organized labor appointed by the governor; and

(7) one public member from the business community appointed by the governor.

C. The industrial training board shall establish policies and promulgate rules for the administration of appropriated funds and shall provide review and oversight to assure that funds expended from the development training fund will generate business activity and give measurable growth to the economic base of New Mexico within the legal limits while preserving the ecological state of New Mexico and its people.

D. Subject to the approval of the industrial training board, the economic development division of the economic development department shall:

(1) administer all funds allocated or appropriated for industrial development training purposes;

(2) provide designated training services;

(3) regulate, control and abandon any training program established under the provisions of this section;

(4) assist companies requesting training in the development of a training proposal to meet the companies' [manpower] workforce needs;

(5) contract for the implementation of all training programs;

(6) provide for training by educational institutions or by a company through in-plant training, at that company's request; and

(7) evaluate training efforts on a basis of performance standards set forth by the industrial training board.

E. The instructional support and vocational education division of the public education department shall provide technical assistance to the economic development department concerning the development of agreements, the determination of the most appropriate instructional training to be provided and the review of training program implementation.

F. Except as provided in Section 21-19-7.1 NMSA 1978 for film and multimedia production companies and preemployment training programs for that industry, the state shall contract with a company or an educational institution to provide training or instructional services in accordance with the approved training proposal and within the following limitations:

(1) payment shall not be made for training in excess of one thousand forty hours of training per trainee for the total duration of training;

(2) training applicants shall have resided within the state for a minimum of one year at any time prior to the commencement of the training program and be of legal status for employment;

(3) payment for institutional classroom training shall be made pursuant to any accepted training contract for a qualified training program;

(4) payment shall not be made pursuant to any accepted training contract for rental of facilities unless facilities are not available on site or at the educational institution;

(5) all applicants shall be eligible under the federal Fair Labor Standards Act of 1938, as amended, and shall not have terminated a public school program within the past three months except by graduation;

(6) trainees shall be guaranteed full-time employment with the contracted company upon successful completion of the training;

(7) persons employed to provide the instructional services shall be exempt from the minimum requirements established in the state plan for other state vocational programs;

(8) payment shall not be made for training programs or production of Indian jewelry or imitation Indian jewelry unless a majority of those involved in the training program or production are of Indian descent; and

(9) if a company hires twenty or more trainees, payment shall not be made for training in a municipality having a population of more than forty thousand according to the most recent decennial census or a class A county unless the company:

(a) offers its employees and their dependents health insurance coverage that is in compliance with the New Mexico Insurance Code; and

(b) contributes not less than fifty percent of the premium for the health insurance for those employees who choose to enroll; provided that the fifty percent employer contribution shall not be a requirement for the dependent coverage that is offered."

Section 37. Section 22-13-26 NMSA 1978 (being Laws 2003, Chapter 161, Section 1) is amended to read:

"22-13-26. YOUTH PROGRAMS ESTABLISHED.--The children, youth and families department, the [state department of] public education department, the department of health, the human services department and the [labor] workforce solutions department shall each contract for programs, subject to appropriations provided for that purpose, funded through a public-private partnership, for community-based after-school and other prevention programs and services for youth. Each department shall ensure, prior to contracting for services, that private matching funding is available and committed for the purpose of the contract."

Section 38. Section 24-17A-3 NMSA 1978 (being Laws 1998, Chapter 82, Section 3) is amended to read:

"24-17A-3. INTERAGENCY COMMITTEE CREATED--COORDINATED SERVICE DELIVERY SYSTEM--LEAD AGENCY--SERVICE DELIVERY SYSTEM.--

A. The "interagency committee on long-term care" is created.

B. Members of the interagency committee on long-term care shall be the heads of the following agencies or their designated representatives:

(1) the [state agency on] aging and long-term services department;

(2) the human services department;

(3) the department of health;

(4) the children, youth and families department;

(5) the [labor] workforce solutions department;

(6) the governor's [committee on concerns of the handicapped] commission on disability;

(7) the developmental disabilities planning council; and

(8) the [department of] insurance division of the public regulation commission.

C. The interagency committee on long-term care shall design and implement a coordinated service delivery system that fulfills the legislative mandate to develop a coordinated long-term care system.

D. The governor shall appoint a chairperson from the membership of the interagency committee on long-term care."

Section 39. Section 27-2B-1 NMSA 1978 (being Laws 1998, Chapter 8, Section 1 and Laws 1998, Chapter 9, Section 1) is amended to read:

"27-2B-1. SHORT TITLE.--[Sections 1 through 20 of this act] Chapter 27, Article 2B NMSA 1978 may be cited as the "New Mexico Works Act"."

Section 40. Section 27-2B-5 NMSA 1978 (being Laws 1998, Chapter 8, Section 5 and also Laws 1998, Chapter 9, Section 5, as amended) is amended to read:

"27-2B-5. WORK REQUIREMENTS--WORK PARTICIPATION RATES.--

A. The following qualify as work activities:

(1) unsubsidized employment, including self-employment;

(2) subsidized private sector employment, including self-employment;

(3) subsidized public sector employment; (4) work experience, including work associated with the refurbishing of publicly assisted housing if sufficient private sector employment is not available;

(5) on-the-job training;

(6) job search and job readiness assistance, as long as the department complies with the federal act;

(7) community service programs;

(8) vocational education, except that vocational education shall not qualify as a work activity for longer than is provided by the federal act;

(9) job skills training activities directly related to employment;

(10) education directly related to employment for a participant who has not received a high school diploma or a certificate of high school equivalency;

(11) satisfactory attendance at a secondary school or course of study leading to a certificate of general equivalency in the case of a participant who has not completed secondary school or received such a certificate; and

(12) the provision of child care services to a participant who is participating in a community service program.

B. The department shall recognize community service programs and job training programs that are operated by an Indian nation, tribe or pueblo.

C. The department may not require a participant to work more than four hours per week over the work requirement rate set pursuant to the federal act.

D. The department shall require a parent, caretaker or other adult who is a member of a benefit group to engage in a work activity once the department determines [he] the person is ready to engage in a work activity or once [he] the person has received cash assistance or services for twenty-four months or as otherwise required by the federal act, whether or not consecutive, whichever is earlier.

E. The following qualify as temporary alternative work activities that the department may establish for no longer than twelve weeks except as otherwise provided:

(1) participating in parenting classes, money management classes or life skills training;

(2) participating in a certified alcohol or drug addiction program;

(3) in the case of a homeless benefit group, finding a home;

(4) in the case of a participant who is a victim of domestic violence residing in a domestic violence shelter or receiving counseling or treatment or participating in criminal justice activities directed at prosecuting the domestic violence perpetrator, for no longer than twenty-four weeks; and

(5) in the case of a participant who does not speak English, participating in a course in English as a second language.

F. Subject to the availability of funds, the department in cooperation with the [labor] workforce solutions department, [New Mexico office of] Indian affairs department and other appropriate state agencies may develop projects to provide for the placement of participants in work activities, including the following:

(1) participating in unpaid internships with private and government entities;

(2) refurbishing publicly assisted housing;

(3) volunteering at a head start program or a school;

(4) weatherizing low-income housing; and

(5) restoring public sites and buildings, including monuments, parks, fire stations, police buildings, jails, libraries, museums, auditoriums, convention halls, hospitals, buildings for administrative offices and city halls.

G. If a participant is engaged in full-time post-secondary education studies or an activity set out in Paragraphs (9) through (11) of Subsection A of this section, the participant shall engage in another work activity at the same time. Additionally, for two-parent families that receive federally funded child-care assistance, the participant's spouse shall engage in a work activity set out in Paragraphs (1) through (5) or (7) of Subsection A of this section unless the participant suffers from a temporary or complete disability that bars [him] the participant from engaging in a work activity or [he] the participant is barred from engaging in a work activity because [he] the participant provides sole care for a disabled person.

H. A participant engaged in post-secondary education studies shall make reasonable efforts to obtain a loan, scholarship, grant or other assistance to pay for costs and tuition and the department shall disregard those amounts in the eligibility determination.

I. For as long as the described conditions exist, the following are exempt from the work requirement:

(1) a participant barred from engaging in a work activity because [he] the participant is temporarily or completely disabled;

(2) a participant over age sixty;

(3) a participant barred from engaging in a work activity because [he] the participant provides the sole care for a disabled person;

(4) a single custodial parent caring for a child less than twelve months old for a lifetime total of twelve months;

(5) a single custodial parent caring for a child under six years of age if the parent is unable to obtain child care for one or more of the following reasons:

(a) unavailability of appropriate child care within a reasonable distance from the parent's home or work as defined by the children, youth and families department;

(b) unavailability or unsuitability of informal child care by a relative under other arrangements as defined by the children, youth and families department; or

(c) unavailability of appropriate and affordable formal child-care arrangements as defined by the children, youth and families department;

(6) a pregnant woman during her last trimester of pregnancy;

(7) a participant prevented from working by a temporary emergency or a situation that precludes work participation for thirty days or less;

(8) a participant who demonstrates by reliable medical, psychological or mental reports, court orders or police reports that family violence or threat of family violence effectively bars the participant from employment; and

(9) a participant who demonstrates good cause of the need for the exemption."

Section 41. Section 28-1-2 NMSA 1978 (being Laws 1969, Chapter 196, Section 2, as amended) is amended to read:

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

A. "person" means one or more individuals, a partnership, association, organization, corporation, joint venture, legal representative, trustees, receivers or the state and all of its political subdivisions;

B. "employer" means any person employing four or more persons and any person acting for an employer;

C. "commission" means the human rights commission;

D. "director" or "bureau" means the [director of the] human rights bureau of the labor relations division of the [labor] workforce solutions department;

E. "employee" means any person in the employ of an employer or an applicant for employment;

F. "labor organization" means any organization that exists for the purpose in whole or in part of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment or of other mutual aid or protection in connection with employment;

G. "employment agency" means any person regularly undertaking with or without compensation to procure opportunities to work or to procure, recruit or refer employees;

H. "public accommodation" means any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private;

I. "housing accommodation" means any building or portion of a building that is constructed or to be constructed, which is used or intended for use as the residence or sleeping place of any individual;

J. "real property" means lands, leaseholds or commercial or industrial buildings, whether constructed or to be constructed, offered for sale or rent, and any land rented or leased for the use, parking or storage of house trailers;

K. "secretary" means the secretary of [labor] workforce solutions;

L. "unlawful discriminatory practices" means those unlawful practices and acts specified in Section 28-1-7 NMSA 1978;

M. "physical or mental handicap" means a physical or mental impairment that substantially limits one or more of a person's major life activities. A person is also considered to be physically or mentally handicapped if [he] the person has a record of a physical or mental handicap or is regarded as having a physical or mental handicap;

N. "major life activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working;

O. "applicant for employment" means a person applying for a position as an employee;

P. "sexual orientation" means heterosexuality, homosexuality or bisexuality, whether actual or perceived; and

Q. "gender identity" means a person's

self-perception, or perception of that person by another, of the person's identity as a male or female based upon the person's appearance, behavior or physical characteristics that are in accord with or opposed to the person's physical anatomy, chromosomal sex or sex at birth."

Section 42. Section 28-1-10 NMSA 1978 (being Laws 1969, Chapter 196, Section 9, as amended) is amended to read:

"28-1-10. GRIEVANCE PROCEDURE.--

A. A person claiming to be aggrieved by an unlawful discriminatory practice and a member of the commission who has reason to believe that discrimination has occurred may file with the human rights [division of the labor department] bureau a written complaint that shall state the name and address of the person alleged to have engaged in the discriminatory practice, all information relating to the discriminatory practice and any other information that may be required by the commission. All complaints shall be filed with the [division] bureau within three hundred days after the alleged act was committed.

B. The [director] bureau shall advise the respondent that a complaint has been filed against the respondent and shall furnish the respondent with a copy of the complaint. The [director] bureau shall promptly investigate the alleged act. If the [director] bureau determines that the complaint lacks probable cause, the [director] bureau shall dismiss the complaint and notify the complainant and respondent of the dismissal. The complaint shall be dismissed subject to appeal as in the case of other orders of the commission.

C. If the [director] bureau determines that probable cause exists for the complaint, the [director] bureau shall attempt to achieve a satisfactory adjustment of the complaint through persuasion and conciliation. The [director and staff] bureau shall neither disclose what has transpired during the attempted conciliation nor divulge information obtained during any hearing before the commission or a commissioner prior to final action relating to the complaint. An officer or employee of the [labor] workforce solutions department who makes public in any manner information in violation of this subsection is guilty of a misdemeanor and upon conviction shall be fined not more than one thousand dollars ($1,000) or imprisoned not more than one year.

D. A person who has filed a complaint with the [human rights division] bureau may request and shall receive an order of nondetermination from the [director] bureau without delay after the [division's] bureau's receipt of the complaint and in jointly filed cases, after the federal complaint has been closed. The order of nondetermination may be appealed pursuant to the provisions of Section 28-1-13 NMSA 1978.

E. In the case of a complaint filed by or on behalf of a person who has an urgent medical condition and has notified the [director] bureau in writing of the test results, the director shall make the determination whether probable cause exists for the complaint and shall attempt any conciliation efforts within ninety days of the filing of the written complaint or notification, whichever occurs last.

F. If conciliation fails or if, in the opinion of the [director] bureau, informal conference cannot result in conciliation and the complainant has not requested a waiver of right to hearing pursuant to the provisions of Subsection J of this section, the commission shall issue a written complaint in its own name against the respondent, except that in the case of a complaint filed by or on behalf of a person who has an urgent medical condition, who has notified the [director] bureau in writing of the test results and who so elects, the [director] bureau shall issue an order of nondetermination, which may be appealed pursuant to the provisions of Section 28-1-13 NMSA 1978. The complaint shall set forth the alleged discriminatory practice, the secretary's [regulation] rule or the section of the Human Rights Act alleged to have been violated and the relief requested. The complaint shall require the respondent to answer the allegations of the complaint at a hearing before the commission or hearing officer and shall specify the date, time and place of the hearing. The hearing date shall not be more than fifteen or less than ten days after service of the complaint. The complaint shall be served on the respondent personally or by registered mail, return receipt requested. The hearing shall be held in the county where the respondent is doing business or the alleged discriminatory practice occurred.

G. Within one year of the filing of a complaint by a person aggrieved, the commission or [its director] the bureau shall:

(1) dismiss the complaint for lack of probable cause;

(2) achieve satisfactory adjustment of the complaint as evidenced by order of the commission; or

(3) file a formal complaint on behalf of the commission.

H. Upon the commission's petition, the district court of the county where the respondent is doing business or the alleged discriminatory practice occurred may grant injunctive relief pending hearing by the commission or pending judicial review of an order of the commission so as to preserve the status quo or to ensure that the commission's order as issued will be effective. The commission shall not be required to post a bond.

I. For purposes of this section, "urgent medical condition" means any medical condition as defined by an appropriate medical authority through documentation or by direct witness of a clearly visible disablement that poses a serious threat to the life of the person with the medical condition.

J. The complainant may seek a trial de novo in the district court in lieu of a hearing before the commission, provided the complainant requests from the [director] bureau, in writing, a waiver of complainant's right to hearing within sixty days of service of written notice of a probable cause determination by the [director] bureau. The [director] bureau shall approve the waiver request and shall serve notice of the waiver upon the complainant and respondent. The complainant may request a trial de novo pursuant to Section 28-1-13 NMSA 1978 within ninety days from the date of service of the waiver. Issuance of the notice shall be deemed a final order of the commission for the purpose of appeal pursuant to Section 28-1-13 NMSA 1978."

Section 43. Section 28-1-11 NMSA 1978 (being Laws 1969, Chapter 196, Section 10, as amended) is amended to read:

"28-1-11. HEARING PROCEDURES.--

A. The respondent to a complaint made pursuant to Section 28-1-10 NMSA 1978 may file a written answer to the complaint, appear at the hearing, give testimony and be represented by counsel and may obtain from the commission subpoenas for any person or for the production of any evidence pertinent to the proceeding. The complainant shall be present at the hearing and may be represented by counsel. Each party shall have the right to amend [his] the party's complaint or answer.

B. A panel of three members of the commission designated by the [chairman] chair shall sit, and a decision agreed upon by two members of the panel shall be the decision of the commission. However, no commissioner who has filed a complaint may sit on the panel hearing [his] the commissioner's complaint. Hearings also may be conducted by a hearing officer employed by the [human rights division of the labor department] bureau or, if the hearing officer is unavailable, one member of the commission may be designated by the [chairman] chair to act as a hearing officer. A hearing officer shall have the same powers and duties as a commissioner as set forth in Paragraph (2) of Subsection A of Section 28-1-4 NMSA 1978.

C. The complainant or [his] the complainant's representative shall present to the commission or the hearing officer the case supporting the complaint. No evidence concerning prior attempts at conciliation shall be received. [The director] A staff member of the bureau shall not participate in the hearing, except as a witness.

D. The commission and the hearing officer shall not be bound by the formal rules of evidence governing courts of law or equity but shall permit reasonable direct examination and cross-examination and the submission of briefs. Testimony at the hearing shall be taken under oath and recorded by tape or otherwise. Upon the request of any party, testimony shall be transcribed, provided that all costs of transcribing shall be paid by the party so requesting. Each commissioner and hearing officer may administer oaths.

E. Upon the conclusion of a hearing conducted by a hearing officer, the hearing officer shall prepare a written report setting forth proposed findings of fact and conclusions of law and recommending the action to be taken by the commission. The hearing officer shall submit the report to a review panel consisting of no more than three members of the commission designated by the [chairman] chair. No commissioner may sit on the panel reviewing the hearing officer's report issued in connection with a complaint filed by the commissioner. A decision by a majority of the members of the review panel shall be the decision of the commission. If the commission finds from the evidence presented at any hearing held pursuant to this section that the respondent has engaged in a discriminatory practice, it shall make written findings of fact, conclusions of law and its decision based upon the findings of fact and conclusions of law. The commission may adopt, modify or reject the proposed findings of fact and conclusions of law and the action recommended by the hearing officer. Within five days after any order is rendered by the commission following a hearing, the commission shall serve upon each party of record and [his] the party's attorney, if any, a written copy of the order by certified mail to the party's address of record. All parties shall be deemed to have been served on the tenth day following the mailing. As part of its order, the commission may require the respondent to pay actual damages to the complainant and to pay reasonable [attorneys'] attorney fees, if the complainant was represented by private counsel, and to take such affirmative action as the commission considers necessary, including a requirement for reports of the manner of compliance.

F. If the commission finds from the evidence that the respondent has not engaged in a discriminatory practice, it shall make written findings of fact and serve the complainant and respondent with a copy of the findings of fact and with an order dismissing the complaint."

Section 44. Section 28-10-1 NMSA 1978 (being Laws 1973, Chapter 349, Section 1, as amended) is amended to read:

"28-10-1. GOVERNOR'S COMMISSION ON DISABILITY.--

A. [There is created] The "governor's commission on disability" is created, consisting of fifteen members, nine of whom shall be appointed by the governor. The six remaining members shall be the director of the vocational rehabilitation division of the public education department, the secretary of [labor] workforce solutions or [his] the secretary's designee, the director of the behavioral health services division of the department of health, the secretary of children, youth and families or [his] the secretary's designee, the [director] secretary of [the state agency on] aging and long-term services or [his] the secretary's designee and the secretary of human services or [his] the secretary's designee. Initially, three members shall be appointed for terms ending December 31, 1978, three members for terms ending December 31, 1980 and three members for terms ending December 31, 1982. Thereafter, appointments shall be for six years expiring on December 31 of even-numbered years. Appointed members shall be appointed from different geographic areas of the state and from the major disability services in the state. Appointed members shall include individuals with disabilities, representatives of government, private enterprise, parents or guardians of individuals with disabilities and professionals in, or those who are interested in, service for individuals with disabilities. Not more than five of the members appointed by the governor shall be of the same political party.

B. A majority of the members of the commission constitutes a quorum for the transaction of business. The commission shall meet at least twice a year and shall annually elect a [chairman] chair and a vice [chairman] chair.

C. The commission shall be primarily concerned with those individuals with disabilities who have a condition [which] that, regardless of its physical or mental origin, constitutes a substantial occupational disadvantage."

Section 45. Section 28-16A-19 NMSA 1978 (being Laws 2003, Chapter 323, Section 1) is amended to read:

"28-16A-19. INFORMATION AND REFERRAL TASK FORCE CREATION.--[There is created] An information and referral task force [located] is created in the developmental disabilities planning council to develop a statewide, comprehensive "211" information and referral plan for use as a telephone dialing code for access to health and human services. The plan shall include a tariff structure based on existing agreements, a common taxonomy of terms, coordination between public and private systems and standardized statewide training and exploration of a centralized information repository. The task force shall include representation from the department of health; the human services department; the children, youth and families department; the [labor] workforce solutions department; the [state agency on] aging and long-term services department; the internet long-term care link program; the governor's [committee on concerns of the handicapped] commission on disability; the New Mexico commission for the blind; the commission for deaf

and hard-of-hearing persons; a statewide organization that raises money for health and human service purposes; and other

interested parties."

Section 46. Section 28-19-1 NMSA 1978 (being Laws 1991, Chapter 252, Section 1) is amended to read:

"28-19-1. MARTIN LUTHER KING, JR. COMMISSION--CREATED--

DEFINED--MEMBERS--TERMS--COMPENSATION.--

A. The "Martin Luther King, Jr. commission" is created. The purpose of the commission is to develop, promote, coordinate and review statewide plans and activities for the annual commemoration and celebration of the birthday of Martin Luther King, Jr. in accordance with Section 12-5-2 NMSA 1978.

B. As used in [Sections 1 through 4 of this act] Chapter 28, Article 19 NMSA 1978, "commission" means the Martin Luther King, Jr. commission.

C. The commission shall be [comprised] composed of thirteen members as follows:

(1) four members appointed by the governor;

(2) one member appointed by the president pro tempore of the senate;

(3) one member appointed by the minority leader of the senate;

(4) one member appointed by the speaker of the house of representatives;

(5) one member appointed by the minority leader of the house of representatives;

(6) the state treasurer or [his] the state treasurer's designee;

(7) the secretary of state or [his] the secretary's designee;

(8) a Native American appointed by the [New Mexico office of] Indian affairs department;

(9) the [director] chief of the human rights [division] bureau of the [labor] workforce solutions department or [his] the chief's designee; and

(10) the [chairman] chair of the [New Mexico state corporation] public regulation commission or [his] the chair's designee.

D. [Members of the commission shall be appointed initially for terms as follows: seven members shall be appointed for terms of two years and six members shall be appointed for terms of four years. The initial terms shall be selected by random drawing.] After the expiration of the initial terms, all appointed members shall [be appointed] serve for four-year terms. The initial commission shall be appointed within forty-five days of the effective date of this [act] section. Vacancies resulting from the death or resignation of [a] an appointed member shall be filled by appointment by the commission [chairman] chair for the unexpired portion of the term of the member creating the vacancy. In filling any vacancy, the commission [chairman] chair may accept recommendations from the person who originally appointed the member creating the vacancy.

E. The members of the commission shall receive no compensation for their service.

F. The members of the commission shall select a [chairman] chair from among the members of the commission.

G. The commission shall appoint an executive director to coordinate all activities on the commission's behalf."

Section 47. Section 50-1-2 NMSA 1978 (being Laws 1931, Chapter 9, Section 8, as amended) is amended to read:

"50-1-2. HEARINGS--LOCATION--NOTICE--CONDUCT--WITNESS FEES--SUBPOENAS--PENALTY.--The director of the labor [and industrial] relations division of the workforce solutions department shall have the power to hold hearings upon and [therein] examine witnesses, administer oaths and take testimony in all matters specified in any complaint [with him] filed with the division and relating to [his] the division's duties and the requirements of Chapter 50, Article 1 NMSA 1978, which hearings shall be held in some suitable place in the vicinity in which the testimony to be taken is applicable, and may issue subpoena for and compel the attendance of witnesses at such hearings; provided, however, that the [director of the labor and industrial] division shall serve upon the employer and such employees as [he] the division deems necessary a written notice of the time, place, purpose and scope of the hearing at least ten days prior to the date thereof. At the hearing, the employer and any employees to be affected by any of the matters and things mentioned in the notice shall have the right to appear in person or by counsel, to cross-examine witnesses and to introduce such testimony as is competent, relevant and material to the subject, purpose and scope of the hearing as stated in the notice; provided, however, that [no] witness fees shall not be paid to [any] a witness unless [he] the witness is required to testify at a place more than five miles from [his] the witness's place of residence, in which event the witness shall be paid the same fees as a witness before a district court. Any person duly subpoenaed under the provisions of this section who willfully refuses or neglects to testify at the time and place named in the subpoena [shall be] is guilty of a misdemeanor and upon conviction [thereof] shall be punished by a fine of not less than fifty dollars ($50.00) [nor] or more than five hundred dollars ($500) or by imprisonment in the county jail not less than ten days [nor] or more than thirty days or by both [such] a fine and imprisonment."

Section 48. Section 50-1-3 NMSA 1978 (being Laws 1931, Chapter 9, Section 9) is amended to read:

"50-1-3. POWERS AND DUTIES OF DIVISION.--[Said commissioner shall inform himself]

A. The labor relations division of the workforce solutions department shall become informed of all laws of the state [for the protection of] that:

(1) protect life and limb in any of the industries of the state;

[all laws regulating] (2) regulate the hours of labor, the employment of minors and the payment of wages;

[and all other laws] (3) are enacted for the protection, health and benefit of employees;

[and thereunder] (4) foster, promote and develop the welfare of wage earners;

(5) advance opportunities for profitable employment;

(6) require, acquire and disseminate useful information on all [subject] subjects connected with labor; and

(7) [assist in the enforcement of the workman's compensation laws and the] enforce employers' liability acts of the state.

[He shall have the power and authority, when in his judgment he deems it necessary, to]

B. The division may take assignment of wage claims and prosecute actions for collection of wages or other claims or demands of employees or ex-employees, who are financially unable to employ counsel, in cases in which, in the judgment of the [commissioner] division, such claims and demands are valid and enforceable in the courts.

[It shall be the duty of said labor commissioner to]

C. The division shall enforce all labor laws in [the State of] New Mexico, the enforcement of which is not specifically and exclusively vested in any other officer, board or commission, state or federal. [and] Whenever, after due inquiry, [he shall be] the division is satisfied that any such law has been violated or that any employee or ex-employee, financially unable to employ counsel, has a just, valid and enforceable claim for wages or other claims or demands, [he] the division shall present the facts to the district attorney of the county in which [such] the violation occurred or wage claim accrued, and it shall be the duty of [such] the district attorney to prosecute the same. [Said labor commissioner] The division shall also prosecute claims arising as between employment agencies and those seeking employment when, in [his] the division's judgment, they are valid and enforceable in the courts."

Section 49. Section 50-1-4 NMSA 1978 (being Laws 1931, Chapter 9, Section 10) is amended to read:

"50-1-4. ANNUAL REPORT OF DIVISION.--The [commissioner] labor relations division of the workforce solutions department shall collect, systematize and present in annual reports to the governor statistical details relating to [his office] the division's work and especially as bearing upon the commercial, social and sanitary conditions of the employees, the means of escape from dangers incident to their employment, the protection of life and health in factory or other places of employment, the labor of women and children and the hours of labor exacted from them and in general all matters [which] that tend to affect the prosperity of the mechanical, manufacturing and productive industries of this state and of the persons employed [therein] in those industries."

Section 50. Section 50-1-5 NMSA 1978 (being Laws 1931, Chapter 9, Section 11) is amended to read:

"50-1-5. INSPECTIONS BY DIVISION--OBSTRUCTING--NOTICE--OFFENSES--PENALTIES.--[Said labor commissioner shall have the power to]

A. The labor relations division of the workforce solutions department may enter any store, factory, foundry, mill, office, workshop, mine or public or private works at any time during working hours and remain as long as necessary [for the purpose of gathering] to gather facts and statistics contemplated by [this Act and] Chapter 50, Article 1 NMSA 1978, to examine safeguards and methods of protection from danger to employees and the sanitary conditions of the buildings and surroundings and to make a record thereof [and]. Any owner, corporation, occupant or officer who [shall refuse such] refuses entry to [said labor commissioner his officers or agents shall be] an employee of the division is guilty of a misdemeanor and upon conviction [thereof] shall be punished by a fine of not less than fifty dollars [nor] ($50.00) or more than five hundred dollars ($500) or by imprisonment in the county jail not less than ten days [nor] or more than thirty days or by both [such] fine and imprisonment. [Provided, that said labor commissioner or his or agents] The division shall, upon entering any store, factory, foundry, mill, office, workshop, mine or any other public or private works, notify the owner, manager, superintendent or anyone in charge of [such] the place of labor of [his] the division's intention to make [such] a visit of inspection, and [such] the owner, manager, superintendent or party in charge shall have the right, either [by himself] in person or by an agent, to accompany [such commissioner or his agent or agents] the employee of the division during the entire time [he] the employee spends upon [such] the premises. [And, provided, further, that]

B. It [shall be] is unlawful for [any such labor commissioner his agent or agents, during the term of office to which such commissioner shall have been appointed] an employee of the division to advocate, either directly or indirectly, verbally or by written or printed matter, [advocate] the organization or changes in organization or the attempt at disorganization of a labor organization or a labor [unions] union or [to] officially to do any act either for or against any political party in [the State of] New Mexico.

[Any commissioner, or his agent or agents]

C. An employee of the division who [fail] fails to give [such] notice of [such] a visit or refuses [such] the owner, manager, superintendent or party in charge, or [his] an agent, the right to accompany [him] the employee at all times on visits of inspection provided for [herein] in this section or who participates in the organization, changing or disorganization of the labor union or labor association, contrary to the provisions [hereof] of this section, or who officially does any act for or against any political party in [the State of] New Mexico, [during his term of office, shall be deemed] is guilty of a misdemeanor and upon conviction [thereof] shall be fined any sum not less than fifty dollars [nor] ($50.00) or more than five hundred dollars ($500) or by imprisonment in the county jail of not less than ten days [nor] or more than thirty days or by both [such] a fine and imprisonment."

Section 51. Section 50-1-6 NMSA 1978 (being Laws 1931, Chapter 9, Section 12) is amended to read:

"50-1-6. FREE EMPLOYMENT AGENCY.--The [labor commissioner] labor relations division of the workforce solutions department may, if deemed necessary, maintain and operate a free employment agency for the purpose of supplying labor to all branches of industry."

Section 52. Section 50-1-7 NMSA 1978 (being Laws 1931, Chapter 9, Section 13, as amended) is amended to read:

"50-1-7. REPORTING VIOLATIONS OF LABOR AND INDUSTRIAL LAWS.--[It is the duty of the director of the labor and industrial division of the labor] The workforce solutions department [to] shall report to the district attorney of the district in which such violations occur, any violation of labor and industrial laws of New Mexico [and]. It is the duty of the district attorneys of the several districts, upon the complaint of the [director] department, to prosecute all violations of law [which may be] that are reported to the district attorney by the [director] department."

Section 53. Section 50-4-9 NMSA 1978 (being Laws 1937, Chapter 109, Section 9) is amended to read:

"50-4-9. RECORDS, SUBPOENAS, ETC.--

[(a)] A. Every employer shall keep a true and accurate record of hours worked by and wages paid to each employee. The employer shall keep [such] those records on file for at least one year after the entry of the record.

[(b)] B. The labor [commissioner and his authorized representatives] relations division of the workforce solutions department shall have the right at all reasonable times to inspect [such] the records for the purpose of ascertaining whether the provisions of [this act] Sections 50-4-1 through 50-4-12 NMSA 1978 are complied with.

[(c)] C. Any interference with the [labor commissioner or his authorized representatives] division in the performance of [their] its duties shall be deemed a violation of [this act] Sections 50-4-1 through 50-4-12 NMSA 1978 and punished as such.

[(d)] D. The [labor commissioner and his authorized representatives] division shall have the power to administer oaths and examine witnesses under oath, issue subpoenas, compel the attendance of witnesses and the production of payroll records and take depositions and affidavits in any proceedings before [said labor commissioner] the division.

[(e)] E. In case of failure of any person to comply with any subpoena lawfully issued or upon the refusal of any witness [or witnesses] to testify [upon] on any matter on which [he or they] the witness may be lawfully interrogated, the [labor commissioner] division may apply to the district court in the proper county or to the judge [thereof] of the county for a writ of attachment to compel [said] the witness to respond to [said] the subpoena or to testify, as the case may be."

Section 54. Section 50-4-11 NMSA 1978 (being Laws 1937, Chapter 109, Section 12, as amended) is amended to read:

"50-4-11. WAGE CLAIMS--LIENS--ASSIGNMENT.--

A. The [labor commissioner shall have power and authority to] labor relations division of the workforce solutions department may:

(1) take assignments of wage claims of employees against employers [and shall also have power to];

(2) take assignments of liens upon real or personal property securing the claims of employees and laborers [and shall have power and authority to]; and

(3) prosecute actions for the collection of [such] claims and for the foreclosure of liens of [such] persons securing [such] the claims of persons who, in the judgment of the [labor commissioner] division, are entitled to the services of the [labor commissioner] division and who, in [his] the division's judgment, have claims or liens or both [which] that are valid and [enforcible] enforceable in the courts.

B. In cases where the [commissioner] division has taken assignments of labor claims [which] that are lienable under the lien laws of [the state of] New Mexico, [he shall have power to] the division may join any number of claimants in one statement of claim or lien and, in case of suit, [to] may join any number of claimants in one cause of action."

Section 55. Section 50-4-12 NMSA 1978 (being Laws 1937, Chapter 109, Section 13, as amended) is amended to read:

"50-4-12. WAGE CLAIM ACTIONS--COSTS--JURISDICTION--REPRESENTATION BY DISTRICT ATTORNEY--APPEALS.--

A. In all actions brought by the [director of the labor and industrial] labor relations division of the [labor] workforce solutions department as assignee under the provisions of Section 50-4-11 NMSA 1978, the [director] division shall be entitled to free process and shall not be obligated or required to give any bond or other security for costs.

B. Any sheriff, constable or other officer requested by the [director] division to serve any summons, writ, complaint or order shall do so without requiring the [director] division to pay any fees or furnish any security or bond.

C. Where all claims joined together do not exceed in the aggregate the jurisdictional limit of the magistrate or metropolitan court, the [director] division may institute an action against the employer in any magistrate or metropolitan court having jurisdiction without referring the claim to the district attorney. In the event that during the course of the proceedings representation by an attorney at law becomes necessary or, in the [director's] division's judgment, advisable, the [director] division shall so notify the district attorney, and it shall then be the duty of the district attorney or the district attorney's assistant to appear for the [director] division in the cause.

D. In the event the cause is appealed by the [director] division, no bond or other security shall be required or fees charged the [director] division for court costs or sheriff's fees in serving process."

Section 56. Section 50-4-16 NMSA 1978 (being Laws 1933, Chapter 149, Section 6) is amended to read:

"50-4-16. TIME RECORDS--INSPECTION.--

A. Every employer to whom [this act applys] Sections 50-4-13 through 50-4-18 NMSA 1978 apply shall be required to keep a time record showing the number of hours each [male] employee worked each day.

B. [Such] The record shall be open at all reasonable hours to the inspection of the [State labor commissioner, his agents or agent, record of which is required to be kept as herein provided for] labor relations division of the workforce solutions department."

Section 57. Section 50-4-21 NMSA 1978 (being Laws 1955, Chapter 200, Section 2, as amended) is amended to read:

"50-4-21. DEFINITIONS.--As used in the Minimum Wage Act:

A. "employ" includes suffer or permit to work;

B. "employer" includes any individual, partnership, association, corporation, business trust, legal representative or any organized group of persons employing one or more employees at any one time, acting directly or indirectly in the interest of an employer in relation to any employee, but shall not include the United States, the state or any political subdivision thereof; and

C. "employee" includes any individual employed by any employer, but shall not include:

(1) any individual employed in domestic service in or about a private home;

(2) any individual employed in a bona fide executive, administrative or professional capacity and [foremen] forepersons, superintendents and supervisors;

(3) any individual employed by the United States or by the state or any political subdivision thereof;

(4) any individual engaged in the activities of an educational, charitable, religious or nonprofit organization where the employer-employee relationship does not, in fact, exist or where the services rendered to such organizations are on a voluntary basis. The employer-employee relationship shall not be deemed to exist with respect to any individual being served for purposes of rehabilitation by a charitable or nonprofit organization, notwithstanding the payment to the individual of a stipend based upon the value of the work performed by the individual;

(5) [salesmen] salespersons or employees compensated upon piecework, flat rate schedules or commission basis;

(6) students regularly enrolled in primary or secondary schools working after school hours or on vacation;

(7) registered apprentices and learners otherwise provided by law;

(8) persons eighteen years of age or under who are not students in a primary, secondary, vocational or training school;

(9) persons eighteen years of age or under who are not graduates of a secondary school;

(10) persons employed by ambulance services;

(11) G.I. bill trainees while under training;

(12) seasonal employees of any employer obtaining and holding a valid certificate issued annually by the [state labor commissioner] labor relations division of the workforce solutions department. The certificate shall state the job designations and total number of employees to be exempted. In approving or disapproving an application for a certificate of exemption, the [commissioner] division shall consider the following:

(a) whether [such] the employment shall be at an educational, charitable or religious youth camp or retreat;

(b) that [such] the employment will be of a temporary nature;

(c) that the individual will be furnished [his] room and board in connection with [such] the employment, or if the camp or retreat is a day camp or retreat, the individual will be furnished board in connection with [such] that employment;

(d) the purposes for which the camp or retreat is operated;

(e) the job classifications for the positions to be exempted; and

(f) any other factors that the [commissioner] division deems necessary to consider;

(13) any employee employed in agriculture:

(a) if [such] the employee is employed by an employer who did not, during any calendar quarter during the preceding calendar year, use more than five hundred man-days of agricultural labor;

(b) if [such] the employee is the parent, spouse, child or other member of [his] the employer's immediate family; for the purpose of this subsection, employer shall include the principal stockholder of a family corporation;

(c) if [such] the employee: 1) is employed as a hand-harvest laborer and is paid on a piece-rate basis in an operation [which] that has been, and is customarily and generally recognized as having been, paid on a piece-rate basis in the region of employment; 2) commutes daily from [his] the employee's permanent residence to the farm on which [he] the employee is so employed; and 3) has been employed in agriculture less than thirteen weeks during the preceding calendar year;

(d) if [such] the employee, other than an employee described in Subparagraph (c) of this paragraph: 1) is sixteen years of age or under and is employed as a hand-harvest laborer, is paid on a piece-rate basis in an operation [which] that has been, and is generally recognized as having been, paid on a piece-rate basis in the region of employment; 2) is employed on the same farm as [his] the employee's parent or person standing in the place of [his] the parent; and 3) is paid at the same piece-rate as employees over age sixteen are paid on the same farm; or

(e) if [such] the employee is principally engaged in the range production of livestock; or

(14) employees of charitable, religious or nonprofit organizations who reside on the premises of group homes operated by such charitable, religious or nonprofit organizations for mentally retarded or emotionally or developmentally disabled persons."

Section 58. Section 50-4-23 NMSA 1978 (being Laws 1967, Chapter 242, Section 1) is amended to read:

"50-4-23. HANDICAPPED PERSONS--MINIMUM WAGE--[LABOR COMMISSIONER] DIVISION POWERS AND DUTIES.--

A. The [state labor commissioner] labor relations division of the workforce solutions department, to the extent necessary in order to prevent curtailment of opportunities for employment, shall, by [regulation] rule, provide for the employment under special certificates of individuals, including individuals employed in agriculture, whose earning or productive capacity is impaired by physical or mental deficiency or injury, at wages [which] that are lower than the minimum wage applicable under Section [59-3-22 New Mexico Statutes Annotated, 1953 Compilation] 50-4-22 NMSA 1978, but not less than fifty percent of [such] that wage.

B. The [state labor commissioner] division, pursuant to [his regulations] rule, and upon certification of any state agency administering or supervising the administration of vocational rehabilitation services, may issue special certificates [which] that allow the holder [thereof] of the certificate to work at wages [which] that are less than those required by Subsection A of this section and [which] that are related to the workers' productivity, for the employment of:

(1) handicapped workers engaged in work [which] that is incidental to training or evaluation programs; and

(2) multihandicapped individuals and other individuals whose earning capacity is so severely impaired that they are unable to engage in competitive employment.

C. The [state labor commissioner] division may, by [regulation or order] rule, provide for the employment of handicapped individuals in work activities centers under special certificates at wages [which] that are less than the minimums applicable under Section [59-2-22 New Mexico Statutes Annotated, 1953 Compilation] 50-4-22 NMSA 1978, or less than that prescribed in Subsection A of this section, and [which] that constitute equitable compensation for such individuals. As used in this subsection, "work activities centers" means centers planned and designed exclusively to provide therapeutic activities for handicapped persons whose physical or mental impairment is so severe as to make their productive capacity inconsequential.

D. The state agency administering or supervising the administration of vocational rehabilitation may issue a temporary certificate for a period not to exceed ninety days pursuant to Subsections A, B and C of this section and may request an extension of the certification by the [state labor commissioner] division when it is determined that the severity of disability of an individual or circumstances warrants an extension of the certification."

Section 59. Section 50-4-25 NMSA 1978 (being Laws 1955, Chapter 200, Section 4, as amended) is amended to read:

"50-4-25. POSTING OF SUMMARY OF THE ACT.--Every employer subject to the Minimum Wage Act shall keep a summary of it, furnished by the [labor commissioner] labor relations division of the workforce solutions department without charge, posted in a conspicuous place on or about the premises wherein any person subject to the Minimum Wage Act is employed, and the summary shall clearly and conspicuously set forth the current minimum wage."

Section 60. Section 50-4-26 NMSA 1978 (being Laws 1955, Chapter 200, Section 5, as amended) is amended to read:

"50-4-26. ENFORCEMENT--PENALTIES--EMPLOYEES' REMEDIES.--

A. [Penalties: (1)] Any employer who violates any of the foregoing provisions [shall be deemed] is guilty of a misdemeanor and shall be punished by a fine of not less than twenty-five dollars [($25)] ($25.00) or more than three hundred dollars ($300) or by imprisonment for not less than ten nor more than ninety days or by both [such] a fine and imprisonment.

[(2) It shall be the duty of the state labor commissioner to]

B. The labor relations division of the workforce solutions department shall enforce and prosecute violations of the Minimum Wage Act. The [labor commissioner is hereby empowered to] division may institute in the name of the state [of New Mexico] an action in the district court of the county wherein the employer who has failed to comply with the Minimum Wage Act resides or has [his] a principal office or place of business, for the purpose of prosecuting violations. [It shall be the duty of] The district attorney for the district wherein any violation hereof occurs [to] shall aid and assist the [labor commissioner] division in the prosecution [thereof] of violations of the Minimum Wage Act.

[B. Employees' remedies: (1)]

C. Any employer who violates any provision of Section [59-3-22 New Mexico Statutes Annotated, 1953 Compilation] 50-4-22 NMSA 1978 shall be liable to the employees affected in the amount of their unpaid minimum wages, as the case may be, and in an additional equal amount as liquidated damages.

[(2)] D. Action to recover [such] liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of [himself or themselves] the employee or employees and for other employees similarly situated, or [such] the employee or employees may designate an agent or representative to maintain [such] the action before and in behalf of all employees similarly situated.

E. The court in any action brought under [Paragraph (2)] Subsection D of this section shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow costs of the action and reasonable [attorneys'] attorney fees to be paid by the defendant. In any proceedings brought pursuant to the provisions of this section, the employee shall not be required to pay any filing fee or other court costs necessarily incurred in [such] the proceedings."

Section 61. Section 50-4-27 NMSA 1978 (being Laws 1967, Chapter 188, Section 5) is amended to read:

"50-4-27. AUTHORITY OF [LABOR COMMISSIONER] DIVISION TO PROMULGATE RULES--HEARING ON RULES--NOTICE--PUBLICATION.--The [state labor commissioner] labor relations division of the workforce solutions department shall have the authority to promulgate and issue rules [and regulations] necessary to administer and accomplish the purposes of the Minimum Wage Act. [Such] The rules [and regulations] shall be adopted after notice and public hearing. A copy of the notice of hearing together with a copy of the proposed [regulations] rules shall be [filed with the librarian of the supreme court library at least twenty days prior to the hearing. In addition, a copy of the notice of hearing shall be] sent to all known interested persons. Any interested person shall have the right to appear and present evidence."

Section 62. Section 50-6-7 NMSA 1978 (being Laws 1925, Chapter 79, Section 8, as amended) is amended to read:

"50-6-7. LABOR PERMIT CERTIFICATES--ISSUANCE--AUTHORIZED OFFICIALS--APPLICATION--CONTENTS--PROOF--COPIES--MAXIMUM TERM.--

A. Permit certificates shall be issued only by the school superintendents, school principals, designated issuing school officers or the [director of the labor and industrial] labor relations division of the [labor] workforce solutions department [or the director's designee].

B. No permit certificate shall be issued to any child until satisfactory proof has been furnished that the work in which the child is to engage is not dangerous to the child nor injurious to [his] the child's health or morals.

C. The application for the certificate [must] shall show that the child is in good physical health and that the work to be performed would not result in injury to the health, morals or mental development of the child. Satisfactory proof of the age of the child at the date of the application shall be furnished. In the case of children over the age of fourteen years and under the age of sixteen years, any application for the employment of children at any gainful occupation during the session hours of the school of the district in which the child resides shall set forth, in addition to the foregoing, the necessity to the family or the dependents of the child or for [his] the child's own support of the income to be derived from the employment or labor.

D. Whenever the [person authorized to issue the labor permit] division is satisfied that the provisions of this section have been complied with, [he] the division shall issue to the child a labor permit, keeping one copy on file and sending one copy of [this] the permit to the labor and industrial commission.

E. No permit certificate shall be in force without renewal for a longer period than one year from the date of issuance."

Section 63. Section 50-6-14 NMSA 1978 (being Laws 1925, Chapter 79, Section 15, as amended) is amended to read:

"50-6-14. STATE CHILD LABOR INSPECTOR--APPOINTMENT--DIRECTION--QUALIFICATIONS.--There shall be a "state child labor inspector", appointed by and subject to the [labor commissioner] director of the labor relations division of the workforce solutions department. The inspector must be qualified by special training and experience [for this work] and must pass a satisfactory examination given by the [labor commissioner] division for this purpose."

Section 64. Section 50-7-3 NMSA 1978 (being Laws 1957, Chapter 219, Section 3, as amended) is amended to read:

"50-7-3. APPRENTICESHIP COUNCIL.--An "apprenticeship council", hereinafter referred to as the council, shall be appointed by the director of the labor [and industrial] relations division of the workforce solutions department [of labor] without regard to any other provisions of law regarding the appointment and compensation of employees of the state. [It] The apprenticeship council shall consist of three persons known to represent employers, three persons known to represent labor organizations and three public representatives and shall include, as ex-officio members without vote, the director of the labor [and industrial] relations division or the director's designee and the [state supervisor of trade and industrial] director of the instructional support and vocational education division of the public education department or the director's designee. Persons appointed to the council [must] shall be familiar with apprenticeable occupations. The terms of office of the members of the council first appointed shall expire as designated [by the director] at the time of [making the] their appointment: one representative each of employers, labor organizations and the public being appointed for one year; one representative each of employers, labor organizations and the public being appointed for two years and one representative each of employers, labor organizations and the public being appointed for three years. Thereafter, each member shall be appointed for a term of three years. Any member appointed to fill a vacancy occurring prior to the expiration of the term of [his] the member's predecessor shall be appointed for the remainder of that term. Members of the council not otherwise compensated by public money shall be reimbursed for their official duties in accordance with the Per Diem and Mileage Act for attendance at not in excess of twelve meetings per year."

Section 65. Section 50-13-3 NMSA 1978 (being Laws 1997, Chapter 237, Section 4) is amended to read:

"50-13-3. STATE DIRECTORY OF NEW HIRES.--

A. The human services department, acting as the state's child support enforcement agency pursuant to Title IV-D of the Social Security Act, shall, not later than October 1, 1997, establish an automated directory to be known as the state directory of new hires, which shall contain information supplied by employers on each newly hired or rehired employee.

B. The state directory of new hires shall use the information received to locate individuals for purposes of establishing paternity and establishing, modifying and enforcing child support obligations and may disclose such information to any agent of the state Title IV-D agency that is under contract with the agency to carry out such purposes.

C. All employers and labor organizations doing business in the state shall furnish to the state directory of new hires a report that contains the name, address and the social security number of each newly hired or rehired employee and the name and address of and identifying number assigned under Section 6109 of the Internal Revenue Code of 1986 to the employer.

D. An employer in the state who also employs persons in another state and who transmits reports magnetically or electronically must designate one state in which the employer has employees to which the employer will transmit the report. Any employer who transmits reports pursuant to this [paragraph] subsection shall notify the state directory of new hires in writing as to which state such employer designates for the purpose of sending reports.

E. Any department, agency or instrumentality of the United States government shall comply with the provisions of this section by transmitting the report described in Subsection C of this section to the national directory of new hires.

F. Each employer and labor organization [as defined above] shall report to the state directory of new hires not later than twenty days after the date the employer hires the employee; or in the case of an employer transmitting reports magnetically or electronically, by two monthly transmissions if necessary not less than twelve days nor more than sixteen days apart.

G. Each report shall be made on a W-4 form or, at the option of the employer, an equivalent form and may be transmitted by first class mail, magnetically or electronically.

H. The [labor] workforce solutions department shall furnish to the state directory of new hires wage and claim information as defined in Section 303(h)(3) of the Social Security Act.

I. The human services department shall reimburse the [labor] workforce solutions department for all costs incurred in furnishing the information. The state directory of new hires shall make available to state public assistance agencies responsible for administering a program specified in Section 1137(b) of the Social Security Act information reported by employers for purposes of verifying eligibility for the program or investigating fraud.

J. The state directory of new hires shall make available to the state agencies operating employment security and workers' compensation programs access to information reported by employers for the purposes of administering such programs or investigating fraud."

Section 66. Section 50-14-2 NMSA 1978 (being Laws 1999, Chapter 260, Section 2, as amended) is amended to read:

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

A. "board" means the state workforce development board;

B. "chief elected official" means the chief elected executive officer of a unit of general local government in a local area and in a case in which a local area includes more than one unit of general local government, "chief elected official" means the person designated under the agreement described in Section 117 (c)(1)(B) of the federal Workforce Investment Act of 1998;

C. "employment training program" means a program or a part of a program, regardless of which state or local agency administers it, that has as its primary purpose assisting persons in obtaining or enhancing employment;

D. "local board" means a local workforce development board; and

E. "office" or "division" means the [office of] workforce [training and development] transition services division of the workforce solutions department."

Section 67. Section 50-14-4 NMSA 1978 (being Laws 1999, Chapter 260, Section 4, as amended) is amended to read:

"50-14-4. DUTIES OF THE BOARD.--

A. The board shall assist the governor in:

(1) developing a five-year state plan that shall be updated annually and revised in accordance with the requirements of the federal Workforce Investment Act of 1998;

(2) developing and improving the statewide activities funded pursuant to the workforce investment system and the one-stop delivery system, including development of linkages to ensure coordination and nonduplication among the programs and activities described in the federal Workforce Investment Act of 1998;

(3) reviewing local plans;

(4) commenting annually on the measures taken pursuant to Section 113(b)(14) of the federal Carl D. Perkins Vocational and Applied Technology Education Act;

(5) developing allocation formulas for adult and youth employment training program funds to local areas in accordance with the federal Workforce Investment Act of 1998;

(6) developing comprehensive state performance measures to assess the effectiveness of workforce investment activities pursuant to the federal Workforce Investment Act of 1998;

(7) designating local workforce development areas;

(8) developing the statewide employment statistics system; and

(9) preparing reports and applications required for submission to the federal government.

B. The board shall also:

(1) review, evaluate and report annually on the performance of all workforce development activities administered by state agencies involved with workforce development;

(2) develop linkages with the public education department and the [commission on] higher education department to ensure coordination and nonduplication of vocational education, apprenticeship, adult education, employment training programs and vocational rehabilitation programs with other workforce development and training programs; and

(3) provide policy advice regarding the application of federal or state law that pertains to workforce development.

C. To assist the board in fulfilling its duties, it is authorized to establish committees, one of which shall be a "coordination oversight committee". Except as provided for the coordination oversight committee in Subsections D and E of this section, the board shall appoint committee members and assign duties to committees as the board deems appropriate. The chair of the board shall appoint committee chairs from among members of the board.

D. The coordination oversight committee shall consist of the secretaries of economic development, human services, [labor and] workforce solutions, public education and higher education; a representative from community colleges; [a representative from the commission on higher education] a representative of labor; two legislators from different political parties, one from the senate and one from the house of representatives; the director of the [office] division; and the committee chair.

E. The duties of the coordination oversight committee include the following:

(1) the secretaries of economic development, [labor] workforce solutions and human services shall propose five-, ten- and fifteen-year regional and statewide strategic plans for employment growth and training in New Mexico for the committee's consideration and possible recommendation for approval to the board as part of the state plan;

(2) the [secretary] secretaries of public education and [the representative from the commission on] higher education shall propose appropriate education plans for secondary education that address the strategic plans proposed by the secretaries of economic development, human services and [labor] workforce solutions for the committee's consideration and possible recommendation for approval to the board as part of the state plan;

(3) the committee's proposals to the board shall facilitate a career pathways culture and, at a minimum, include reference to foundation skills as developed by the United States secretary of labor's commission on achieving necessary skills, a job analysis that the economic development department shall produce after consultation with incumbent workers and employers, an available skills assessment and training targets;

(4) the board member from the community colleges shall solicit input from the community college constituency and work with regional and statewide businesses and other partners and the economic development department to create career pathways and align curriculum and facilitate plans with the economic development department, human services department and [labor] workforce solutions department strategic plans;

(5) the committee shall, after consultation with the state chief information officer, develop and propose strategies for coordination of information technology for the purposes of providing participants access to all appropriate state services; collecting and managing data to allow reporting and analysis of uniform performance data related to all appropriate employment training programs; and sharing and integrating appropriate workforce data across agencies and appropriate nongovernmental partners for identifying needs, setting policy and coordinating strategies;

(6) the committee shall recommend for the board's approval the coordination of program designs to avoid duplication or unproductive segmentation of services; and

(7) the committee shall recommend for the board's approval the coordination of state agency efforts to progress toward comprehensive, customer-driven one-stop centers through co-location of mandatory and recommended partner service delivery points for workforce development.

F. All state agencies involved in workforce development activities shall annually submit to the board for its review and potential inclusion in the five-year plan their goals, objectives and policies. The plan shall include recommendations to the legislature on the modification, consolidation, initiation or elimination of workforce training and education programs in the state."

Section 68. Section 50-14-9 NMSA 1978 (being Laws 2005, Chapter 111, Section 10) is amended to read:

"50-14-9. [OFFICE OF WORKFORCE TRAINING AND DEVELOPMENT--CREATION--DIRECTOR] WORKFORCE TRANSITION SERVICES DIVISION.--

A. The "[office of] workforce [training and development] transition services division" is created [as an agency administratively attached to the office of the governor] in the workforce solutions department.

B. The [office] division shall be the recipient of all grants from the United States pursuant to the federal Workforce Investment Act of 1998 and shall disburse those grants consistent with that act and the Workforce Development Act.

C. The [office] division shall administer the provisions of the Workforce Development Act and is the governor's designee for the state with authority to administer New Mexico's program pursuant to the federal Workforce Investment Act of 1998. In performance of that duty and the duties set forth in Section [11 of this 2005 act] 50-14-10 NMSA 1978, the [office] division has the general power to:

(1) sue and, subject to the provisions of the Tort Claims Act, be sued;

(2) enter into contracts, joint powers agreements and other contracts for workforce development services and administer related programs with other state agencies; local governments; state institutions of higher learning; Indian nations, tribes or pueblos; regional provider networks; and corporations authorized to do business in the state;

(3) take administrative action by issuing orders and instructions, not inconsistent with law, to ensure implementation of and compliance with the provisions of law for which the [office] division is responsible and to enforce those orders and instructions by appropriate administrative actions or actions in courts;

(4) promulgate, following the procedure in Subsection E of Section 9-1-5 NMSA 1978, reasonable rules necessary to carry out the duties of the [office] division; and

(5) take all other actions necessary to meet the purposes of the Workforce Development Act.

[D. The governor shall appoint, with the advice and consent of the senate, a director of the office who shall be the administrative head of the office and exempt from the provisions of the Personnel Act.

E. The director of the office may, within the limits of available appropriations and pursuant to the provisions of the Personnel Act, employ such technical and administrative staff as are necessary to carry out the duties of the office.]"

Section 69. Section 50-14-10 NMSA 1978 (being Laws 2005, Chapter 111, Section 11) is amended to read:

"50-14-10. [OFFICE] DIVISION--DUTIES--LIMITATIONS.--

A. The [office] division shall:

(1) provide technical, administrative and fiscal agent support to the board;

(2) develop a unified, comprehensive plan for streamlining and integrating employment training programs, including the consolidation of all employment training programs, into the [office] division. The [office] division shall report annually to the governor and the legislature generally the progress and effectiveness of the workforce development system no later than September 1;

(3) develop a performance-based system of accountability for employment training programs, including the board, local boards, one-stop centers and training providers, which system shall include key performance benchmarks to be used to monitor and assess performance;

(4) monitor compliance with performance-based and coordination standards, including such standards as the [office] division establishes by rule, with approval of the board, or that the board has adopted in the state plan, for the state's employment training programs regardless of funding source or the administrative agency that receives the funds. In performing this duty, the [office] division:

(a) may issue subpoenas to appear and answer questions or produce documents;

(b) may investigate substantial allegations of improper financial or program activities;

(d) shall, with approval of the governor, issue such corrective action orders as are necessary to enforce compliance, including orders that suspend funding for employment training programs or that transfer the programs to another agency;

(5) promote the active participation and partnership with community colleges wherever possible throughout the state, which shall include the use of community colleges in creating career pathways and the use of available partnership incentives with local boards to use community college facilities for one-stop locations, co-location opportunities and specifically designed training programs; and

(6) provide oversight and technical support for local boards to assist them in achieving independence and meeting performance standards while implementing statewide goals and directions.

B. The [office] division shall not compete for a contract to provide one-stop services, act as a one-stop operator, accept revenues for one-stop contractor services for a local area of the state or receive funding from residual set-aside funds other than for usual and customary [office] division activities; provided, however, that the [office] division may, in its discretion and consistent with the state plan, promote and fund the establishment of all required and allowable statewide investment activities consistent with Section 134 of the federal Workforce Investment Act of 1998 and in cooperation with local boards.

[C. Nothing in the Workforce Development Act shall be construed to provide the office with authority to administer the unemployment compensation program, programs under 29 U.S.C. Sections 49 through 49c or a program currently administered by the labor department.]"

Section 70. Section 50-14-12 NMSA 1978 (being Laws 2005, Chapter 111, Section 13) is amended to read:

"50-14-12. COOPERATION WITH FEDERAL GOVERNMENT--AGENCY DESIGNATION.--

A. The [office] division may cooperate with the federal government in the administration of employment training and public assistance programs in which financial or other participation by the federal government is authorized or mandated under federal laws, rules or orders.

B. The [office] division, on behalf of the governor, may enter into agreements with agencies of the federal government to implement employment training and public assistance programs subject to availability of appropriated state funds and any provisions of state laws applicable to the agreements or participation by the state.

C. The governor may designate the [office or any agency] division as the single state agency for the administration of an employment training program, either by the governor's own discretion or when the designation is a condition of federal financial or other participation in the program under applicable federal law, rule or order; provided, however, that no designation of a single state agency under the authority granted in this section shall be made in contravention of state law."

Section 71. Section 50-15-2 NMSA 1978 (being Laws 2005, Chapter 257, Section 2) is amended to read:

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

A. "check cashing service" means a business that for a fee offers to cash checks or other payment instruments or that advertises that it cashes checks or other payment instruments;

B. "day labor" means employment that is under a contract between a day labor service agency and a third-party employer, that is occasional or irregular and that is for a limited time period;

C. "day labor service agency" means an entity, including a labor broker or labor pool, that provides day laborers to third-party employers and that charges the third-party employer for the service of providing day laborers for employment offered by the employer;

D. "day laborer" means a person who contracts for day labor employment with a day labor service agency;

E. "department" means the [labor] workforce solutions department;

F. "office worker" means a person employed to perform clerical, secretarial or other semiskilled or skilled work that is predominantly performed in an office setting;

G. "payment instrument" means a paycheck, payment voucher or other negotiable instrument from an employer provided to an employee to pay for hours worked; and

H. "third-party employer" means a person that contracts with a day labor service agency for the employment of day laborers."

Section 72. Section 51-1-2 NMSA 1978 (being Laws 1979, Chapter 280, Section 11, as amended) is amended to read:

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

A. "department" means the [labor] workforce solutions department;

B. "division" means the [employment security] workforce transition services division of the [labor] department, the director of the division or an employee of the division exercising authority lawfully delegated to the employee by the director; and C. "secretary" means the secretary of [labor] workforce solutions or an employee of the department exercising authority lawfully delegated to the employee by the secretary."

Section 73. Section 52-1-41 NMSA 1978 (being Laws 1959, Chapter 67, Section 20, as amended) is amended to read:

"52-1-41. COMPENSATION BENEFITS--TOTAL DISABILITY.--

A. For total disability, the worker shall receive, during the period of that disability, sixty-six and two-thirds percent of [his] the worker's average weekly wage, and not to exceed a maximum compensation of eighty-five percent of the average weekly wage in the state, a week, effective July l, 1987 through December 31, 1999, and thereafter not to exceed a maximum compensation of one hundred percent of the average weekly wage in the state, a week; and to be not less than a minimum compensation of thirty-six dollars ($36.00) a week. Except as provided in Subsections B and C of this section, the worker shall receive compensation benefits for the remainder of [his] the worker's life.

B. For disability resulting from primary mental impairment, the maximum period of compensation is one hundred weeks. For disability resulting in secondary mental impairment, the maximum period of compensation is the maximum period allowable for the disability produced by the physical impairment or one hundred weeks, whichever is greater.

C. For the purpose of paying compensation benefits for death, pursuant to Section 52-1-46 NMSA 1978, the worker's maximum disability recovery shall be deemed to be seven hundred weeks.

D. Where the worker's average weekly wage is less than thirty-six dollars ($36.00) a week, the compensation to be paid the worker shall be [his] the worker's full weekly wage.

E. For the purpose of the Workers' Compensation Act, the average weekly wage in the state shall be determined by the [employment security division of the labor] workforce solutions department on or before June 30 of each year and shall be computed from all wages reported to the [employment security division] department from employing units, including reimbursable employers, in accordance with the [regulations] rules of the [division] department for the preceding calendar year, divided by the total number of covered employees divided by fifty-two.

F. The average weekly wage in the state, determined as provided in Subsection E of this section, shall be applicable for the full period during which compensation is payable when the date of the occurrence of an accidental injury falls within the calendar year commencing January 1 following the June 30 determination.

G. Unless the computation provided for in Subsection E of this section results in an increase or decrease of two dollars ($2.00) or more, raised to the next whole dollar, the statewide average weekly wage determination shall not be changed for any calendar year."

Section 74. Section 52-3-18 NMSA 1978 (being Laws 1965, Chapter 299, Section 5, as amended) is amended to read:

"52-3-18. DETERMINATION BY WORKERS' COMPENSATION [DIVISION OF THE LABOR DEPARTMENT] ADMINISTRATION.--All issues of fact or law arising under the New Mexico Occupational Disease Disablement Law shall be determined by the workers' compensation [division of the labor department] administration pursuant to the provisions of Chapter 52 NMSA 1978."

Section 75. Section 52-3-59 NMSA 1978 (being Laws 1975, Chapter 268, Section 5, as amended) is amended to read:

"52-3-59. RECIPROCAL RECOGNITION OF EXTRA-TERRITORIAL COVERAGE WITH OTHER JURISDICTIONS.--For the purpose of effecting mutually satisfactory reciprocal arrangements with other states respecting extra-territorial jurisdictions, the [employment security division of the labor department] workers' compensation administration is empowered to promulgate special and general [regulations] rules not inconsistent with the provisions of the New Mexico Occupational Disease Disablement Law and, with the approval of the governor, to enter into reciprocal agreements with appropriate boards, commissions, officers or agencies of other states having jurisdiction over workers' compensation claims."

Section 76. Section 52-5-3 NMSA 1978 (being Laws 1986, Chapter 22, Section 29, as amended) is amended to read:

"52-5-3. REPORTS--DATA GATHERING.--

A. The intent of this section is to allow the director to gather data and conduct studies to evaluate the workers' compensation and occupational disease disablement system in New Mexico. This includes evaluating the benefits structure and the costs incurred under each version of the Workers' Compensation Act and the New Mexico Occupational Disease Disablement Law. To this end, the director shall establish baseline data against which to assess the changes in the law.

B. The director shall independently evaluate insurance industry data pertaining to workers' compensation and occupational disease disablement claims and payments, as well as other information the director believes to be necessary and relevant to a thorough evaluation of the system's effectiveness. In addition to data generated by insurance industry representatives and organizations, the director shall collect data from employers, claimants and other relevant parties.

C. Unless otherwise provided by law, the director shall have access to insurance industry information that contains workers' compensation and occupational disease disablement claim data as the director determines is necessary to carry out the provisions of this section.

D. The director shall have access to files and records of:

(1) the [labor] workforce solutions department that pertain to:

(a) the name and number of employees reported by employers;

(b) employers' mailing addresses;

(d) general wage information;

(2) the insurance division of the public regulation commission that pertain to:

(a) historical insurance classification rates and total premiums paid during given periods of time;

(b) insurers licensed to underwrite casualty insurance; and

(3) the human services department that include names, addresses and other identifying information of recipients of benefits and services pertaining to income support;

(4) the taxation and revenue department that identify employers paying workers' compensation assessments in accordance with Section 52-5-19 NMSA 1978; and

(5) the motor vehicle division of the taxation and revenue department that pertain to the identity of licensed drivers and the ownership of motor vehicles.

E. Information that is confidential under state law shall be accessible to the director and shall remain confidential.

F. The director shall prepare an annual report. [He] The director shall publish in that report and in other reports as [he] the director deems appropriate such statistical and informational reports and analyses based on reports and records available as, in [his] the director's opinion, will be useful in increasing public understanding of the purposes, effectiveness, costs, coverage and administrative procedures of workers' compensation and in providing basic information regarding the occurrence and sources of work injuries or disablements to public and private agencies engaged in industrial injury prevention activities. The reports shall include information concerning the nature and frequency of injuries and occupational diseases sustained and the resulting benefits, costs and other factors that are important to furthering the intent of this section."

Section 77. Section 60-13-3.1 NMSA 1978 (being Laws 2005, Chapter 94, Section 1) is amended to read:

"60-13-3.1. EMPLOYER AND EMPLOYEE RELATIONSHIP--INDEPENDENT CONTRACTOR--IMPROPER REPORTING--PENALTY--LICENSE SANCTIONS.--

A. Except as provided in Subsection D of this section, for purposes of the employer and employee relationship within those construction industries subject to the Construction Industries Licensing Act, a contractor who is an employer shall consider a person providing labor or services to the contractor for compensation to be an employee of the contractor and not an independent contractor unless the following standards indicative of an independent contractor are met:

(1) the person providing labor or services is free from direction and control over the means and manner of providing the labor or services, subject only to the right of the person for whom the labor or services are provided to specify the desired results;

(2) the person providing labor or services is responsible for obtaining business registrations or licenses required by state law or local ordinance for the person to provide the labor or services;

(3) the person providing labor or services furnishes the tools or equipment necessary to provide the labor or services;

(4) the person providing labor or services has the authority to hire and fire employees to perform the labor or services;

(5) payment for labor or services is made upon completion of the performance of specific portions of a project or is made on the basis of a periodic retainer; and

(6) the person providing labor or services represents to the public that the labor or services are to be provided by an independently established business. A person is engaged in an independently established business when four or more of the following circumstances exist:

(a) labor or services are primarily performed at a location separate from the person's residence or in a specific portion of the residence that is set aside for performing labor or services;

(b) commercial advertising or business cards are purchased by the person, or the person is a member of a trade or professional association;

(d) labor or services are performed only pursuant to a written contract;

(e) labor or services are performed for two or more persons within a period of one year; or

(f) the person assumes financial responsibility for errors and omissions in labor or services as evidenced by insurance, performance bonds and warranties relating to the labor or services being provided.

B. The [labor] workforce solutions department shall administer and enforce the provisions of Subsection A of this section, including coordination with the construction industries division of the regulation and licensing department.

C. A contractor who intentionally and willfully reports to a state agency or other client that an employee is an independent contractor or who, for the purposes of a program administered by a state agency, intentionally and willfully treats or otherwise lists an employee as an independent contractor when the employee's status does not meet the standards indicative of an independent contractor as identified in Subsection A of this section is guilty of a misdemeanor and shall be punished by a fine of not more than five thousand dollars ($5,000) or by imprisonment for a definite term not to exceed six months or both. For the purposes of this subsection, "state agency" means an administration, board, commission, department or division of this state.

D. Conviction of a contractor for violating Subsection C of this section shall be grounds for the construction industries commission to take action to suspend, revoke or refuse to renew a license issued to that contractor by the construction industries division of the regulation and licensing department.

E. Subsections A, B and C of this section shall not be construed to affect or apply to a common law or statutory action providing for recovery in torts and shall not be construed to affect or change the common law interpretation of independent contractor status as it relates to tort liability."

Section 78. TEMPORARY PROVISIONS--TRANSFERS.--

A. On July 1, 2007, all functions, personnel, appropriations, money, buildings, files, records, furniture, equipment and other property of the labor department, including any divisions of the department, are transferred to the workforce solutions department.

B. On July 1, 2007, all functions, personnel, appropriations, money, files, records, furniture, equipment and other property of the office of workforce training and development are transferred to the workforce solutions department.

C. On July 1, 2007, all contractual obligations of the labor department, including any divisions of the department, are transferred to the workforce solutions department.

D. On July 1, 2007, all contractual obligations of the office of workforce training and development are transferred to the workforce solutions department.

E. On July 1, 2007, all statutory references to the labor department or any divisions of the labor department shall be deemed to be references to the workforce solutions department.

F. On July 1, 2007, all statutory references to the office of workforce training and development shall be deemed to be references to the workforce solutions department.

Section 79. REPEAL.--Sections 9-18-1 through 9-18-15, 50-1-1.5, 50-1-9, 50-6-15 and 50-14-16 NMSA 1978 (being Laws 1987, Chapter 342, Sections 1 through 14, Laws 1993, Chapter 16, Section 2, Laws 1979, Chapter 204, Section 8, Laws 1987, Chapter 333, Section 2, Laws 1963, Chapter 175, Section 4 and Laws 2005, Chapter 111, Section 25, as amended) are repealed.

Section 80. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2007.

- 136 -