0001| AN ACT | 0002| RELATING TO UNEMPLOYMENT COMPENSATION; PROVIDING THAT CERTAIN | 0003| DEMONSTRATION SERVICES DO NOT QUALIFY AS EMPLOYMENT FOR THE | 0004| PURPOSES OF THE UNEMPLOYMENT COMPENSATION LAW; AMENDING A | 0005| SECTION OF THE UNEMPLOYMENT COMPENSATION LAW. | 0006| | 0007| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0008| Section 1. Section 51-1-42 NMSA 1978 (being Laws 1936 | 0009| (S.S.), Chapter 1, Section 19, as amended) is amended to | 0010| read: | 0011| "51-1-42. DEFINITIONS.--As used in the Unemployment | 0012| Compensation Law: | 0013| A. "base period" means the first four of the last | 0014| five completed calendar quarters immediately preceding the | 0015| first day of an individual's benefit year; | 0016| B. "benefits" means the cash unemployment | 0017| compensation payments payable to an eligible individual | 0018| pursuant to Section 51-1-4 NMSA 1978 with respect to his | 0019| weeks of unemployment; | 0020| C. "contributions" means the money payments | 0021| required by Section 51-1-9 NMSA 1978 to be made into the fund | 0022| by an employer on account of having individuals performing | 0023| services for him; | 0024| D. "employing unit" means any individual or type | 0025| of organization, including any partnership, association, | 0001| cooperative, trust, estate, joint-stock company, agricultural | 0002| enterprise, insurance company or corporation, whether | 0003| domestic or foreign, or the receiver, trustee in bankruptcy, | 0004| trustee or successor thereof, household, fraternity or club, | 0005| the legal representative of a deceased person or any state or | 0006| local government entity to the extent required by law to be | 0007| covered as an employer, which has in its employ one or more | 0008| individuals performing services for it within this state. | 0009| All individuals performing services for any employing unit | 0010| which maintains two or more separate establishments within | 0011| this state shall be deemed to be employed by a single | 0012| employing unit for all the purposes of the Unemployment | 0013| Compensation Law. Individuals performing services for | 0014| contractors, subcontractors or agents which are performing | 0015| work or services for an employing unit, as described in this | 0016| subsection, which is within the scope of the employing unit's | 0017| usual trade, occupation, profession or business shall be | 0018| deemed to be in the employ of the employing unit for all | 0019| purposes of the Unemployment Compensation Law unless such | 0020| contractor, subcontractor or agent is itself an employer | 0021| within the provision of Subsection E of this section; | 0022| E. "employer" includes: | 0023| (1) any employing unit which: | 0024| (a) unless otherwise provided in this | 0025| section, paid for service in employment as defined in | 0001| Subsection F of this section wages of four hundred fifty | 0002| dollars ($450) or more in any calendar quarter in either the | 0003| current or preceding calendar year or had in employment, as | 0004| defined in Subsection F of this section, for some portion of | 0005| a day in each of twenty different calendar weeks during | 0006| either the current or the preceding calendar year, and | 0007| irrespective of whether the same individual was in employment | 0008| in each such day, at least one individual; | 0009| (b) for the purposes of Subparagraph | 0010| (a) of this paragraph, if any week includes both December 31 | 0011| and January 1, the days of that week up to January 1 shall be | 0012| deemed one calendar week and the days beginning January 1, | 0013| another such week; and | 0014| (c) for purposes of defining an | 0015| "employer" under Subparagraph (a) of this paragraph, the | 0016| wages or remuneration paid to individuals performing services | 0017| in employment in agricultural labor or domestic services as | 0018| provided in Paragraphs (6) and (7) of Subsection F of this | 0019| section shall not be taken into account; except that any | 0020| employing unit determined to be an employer of agricultural | 0021| labor under Paragraph (6) of Subsection F of this section | 0022| shall be an employer under Subparagraph (a) of this paragraph | 0023| so long as the employing unit is paying wages or remuneration | 0024| for services other than agricultural services; | 0025| (2) any individual or type of organization | 0001| that acquired the trade or business or substantially all of | 0002| the assets thereof, of an employing unit which at the time of | 0003| such acquisition was an employer subject to the Unemployment | 0004| Compensation Law; provided that where such an acquisition | 0005| takes place, the secretary may postpone activating the | 0006| separate account pursuant to Subsection A of Section 51-1-11 | 0007| NMSA 1978 until such time as the successor employer has | 0008| employment as defined in Subsection F of this section; | 0009| (3) any employing unit which acquired all or | 0010| part of the organization, trade, business or assets of | 0011| another employing unit and which, if treated as a single unit | 0012| with such other employing unit or part thereof, would be an | 0013| employer under Paragraph (1) of this subsection; | 0014| (4) any employing unit not an employer by | 0015| reason of any other paragraph of this subsection, | 0016| (a) for which, within either the | 0017| current or preceding calendar year, service is or was | 0018| performed with respect to which such employing unit is liable | 0019| for any federal tax against which credit may be taken for | 0020| contributions required to be paid into a state unemployment | 0021| fund, or | 0022| (b) which, as a condition for approval | 0023| of the Unemployment Compensation Law for full tax credit | 0024| against the tax imposed by the Federal Unemployment Tax Act, | 0025| is required, pursuant to such act, to be an "employer" under | 0001| the Unemployment Compensation Law; | 0002| (5) any employing unit which, having become | 0003| an employer under Paragraph (1), (2), (3) or (4) of this | 0004| subsection, has not, under Section 51-1-18 NMSA 1978, ceased | 0005| to be an employer subject to the Unemployment Compensation | 0006| Law; | 0007| (6) for the effective period of its election | 0008| pursuant to Section 51-1-18 NMSA 1978, any other employing | 0009| unit which has elected to become fully subject to the | 0010| Unemployment Compensation Law; and | 0011| (7) any employing unit for which any | 0012| services performed in its employ are deemed to be performed | 0013| in this state pursuant to an election under an arrangement | 0014| entered into in accordance with Subsection A of Section | 0015| 51-1-50 NMSA 1978; | 0016| F. "employment" means: | 0017| (1) any service, including service in | 0018| interstate commerce, performed for wages or under any | 0019| contract of hire, written or oral, express or implied; | 0020| (2) and includes an individual's entire | 0021| service, performed within or both within and without this | 0022| state if: | 0023| (a) the service is primarily localized | 0024| in this state with services performed outside the state being | 0025| only incidental thereto; or | 0001| (b) the service is not localized in | 0002| any state but some of the service is performed in this state | 0003| and: 1) the base of operations or, if there is no base of | 0004| operations, the place from which such service is directed or | 0005| controlled, is in this state; or 2) the base of operations or | 0006| place from which such service is directed or controlled is | 0007| not in any state in which some part of the service is | 0008| performed but the individual's residence is in this state; | 0009| (3) services performed within this state but | 0010| not covered under Paragraph (2) of this subsection if | 0011| contributions or payments in lieu of contributions are not | 0012| required and paid with respect to such services under an | 0013| unemployment compensation law of any other state, the federal | 0014| government or Canada; | 0015| (4) services covered by an election pursuant | 0016| to Section 51-1-18 NMSA 1978 and services covered by an | 0017| election duly approved by the secretary in accordance with an | 0018| arrangement pursuant to Paragraph (1) of Subsection A of | 0019| Section 51-1-50 NMSA 1978 shall be deemed to be employment | 0020| during the effective period of such election; | 0021| (5) services performed by an individual for | 0022| an employer for wages or other remuneration unless and until | 0023| it is established by a preponderance of evidence that: | 0024| (a) such individual has been and will | 0025| continue to be free from control or direction over the | 0001| performance of such services both under his contract of | 0002| service and in fact; | 0003| (b) such service is either outside the | 0004| usual course of business for which such service is performed | 0005| or that such service is performed outside of all the places | 0006| of business of the enterprise for which such service is | 0007| performed; and | 0008| (c) such individual is customarily | 0009| engaged in an independently established trade, occupation, | 0010| profession or business of the same nature as that involved in | 0011| the contract of service; | 0012| (6) service performed after December 31, | 0013| 1977 by an individual in agricultural labor as defined in | 0014| Subsection Q of this section if: | 0015| (a) such service is performed for an | 0016| employing unit which: 1) paid remuneration in cash of twenty | 0017| thousand dollars ($20,000) or more to individuals in such | 0018| employment during any calendar quarter in either the current | 0019| or the preceding calendar year; or 2) employed in | 0020| agricultural labor ten or more individuals for some portion | 0021| of a day in each of twenty different calendar weeks in either | 0022| the current or preceding calendar year, whether or not such | 0023| weeks were consecutive, and regardless of whether such | 0024| individuals were employed at the same time; | 0025| (b) such service is not performed | 0001| before January 1, 1980 by an individual who is an alien | 0002| admitted to the United States to perform service in | 0003| agricultural labor pursuant to Sections 214(c) and 101(15)(H) | 0004| of the Immigration and Nationality Act; and | 0005| (c) for purposes of this paragraph, | 0006| any individual who is a member of a crew furnished by a crew | 0007| leader to perform service in agricultural labor for a farm | 0008| operator or other person shall be treated as an employee of | 0009| such crew leader: 1) if such crew leader meets the | 0010| requirements of a crew leader as defined in Subsection L of | 0011| this section; or 2) substantially all the members of such | 0012| crew operate or maintain mechanized agricultural equipment | 0013| which is provided by the crew leader; and 3) the individuals | 0014| performing such services are not, by written agreement or in | 0015| fact, within the meaning of Paragraph (5) of this subsection, | 0016| performing services in employment for the farm operator or | 0017| other person; | 0018| (7) service performed after December 31, | 0019| 1977 by an individual in domestic service in a private home, | 0020| local college club or local chapter of a college fraternity | 0021| or sorority for a person or organization that paid cash | 0022| remuneration of one thousand dollars ($1,000) in any calendar | 0023| quarter in the current or preceding calendar year to | 0024| individuals performing such services; | 0025| (8) service performed after December 31, | 0001| 1971 by an individual in the employ of a religious, | 0002| charitable, educational or other organization but only if the | 0003| following conditions are met: | 0004| (a) the service is excluded from | 0005| "employment" as defined in the Federal Unemployment Tax Act | 0006| solely by reason of Section 3306(c)(8) of that act; and | 0007| (b) the organization meets the | 0008| requirements of "employer" as provided in Subparagraph (a) of | 0009| Paragraph (1) of Subsection E of this section; | 0010| (9) service of an individual who is a | 0011| citizen of the United States, performed outside the United | 0012| States, except in Canada, after December 31, 1971 in the | 0013| employ of an American employer (other than service which is | 0014| deemed "employment" under the provisions of Paragraph (2) of | 0015| this subsection or the parallel provisions of another state's | 0016| law), if: | 0017| (a) the employer's principal place of | 0018| business in the United States is located in this state; | 0019| (b) the employer has no place of | 0020| business in the United States, but: 1) the employer is an | 0021| individual who is a resident of this state; 2) the employer | 0022| is a corporation which is organized under the laws of this | 0023| state; or 3) the employer is a partnership or a trust and the | 0024| number of the partners or trustees who are residents of this | 0025| state is greater than the number who are residents of any one | 0001| other state; or | 0002| (c) none of the criteria of | 0003| Subparagraphs (a) and (b) of this paragraph are met, but the | 0004| employer has elected coverage in this state or, the employer | 0005| having failed to elect coverage in any state, the individual | 0006| has filed a claim for benefits, based on such service, under | 0007| the law of this state. | 0008| "American employer" for purposes of this paragraph means | 0009| a person who is: 1) an individual who is a resident of the | 0010| United States; 2) a partnership if two-thirds or more of the | 0011| partners are residents of the United States; 3) a trust if | 0012| all of the trustees are residents of the United States; or 4) | 0013| a corporation organized under the laws of the United States | 0014| or of any state. For the purposes of this paragraph, "United | 0015| States" includes the United States, the District of Columbia, | 0016| the commonwealth of Puerto Rico and the Virgin Islands; | 0017| (10) notwithstanding any other provisions of | 0018| this subsection, service with respect to which a tax is | 0019| required to be paid under any federal law imposing a tax | 0020| against which credit may be taken for contributions required | 0021| to be paid into a state unemployment fund or which as a | 0022| condition for full tax credit against the tax imposed by the | 0023| Federal Unemployment Tax Act is required to be covered under | 0024| the Unemployment Compensation Law; | 0025| (11) "employment" shall not include: | 0001| (a) service performed in the employ | 0002| of: 1) a church or convention or association of churches; or | 0003| 2) an organization which is operated primarily for religious | 0004| purposes and which is operated, supervised, controlled or | 0005| principally supported by a church or convention or | 0006| association of churches; | 0007| (b) service performed by a duly | 0008| ordained, commissioned or licensed minister of a church in | 0009| the exercise of his ministry or by a member of a religious | 0010| order in the exercise of duties required by such order; | 0011| (c) service performed by an individual | 0012| in the employ of his son, daughter or spouse, and service | 0013| performed by a child under the age of majority in the employ | 0014| of his father or mother; | 0015| (d) service performed in the employ of | 0016| the United States government or an instrumentality of the | 0017| United States immune under the constitution of the United | 0018| States from the contributions imposed by the Unemployment | 0019| Compensation Law except that to the extent that the congress | 0020| of the United States shall permit states to require any | 0021| instrumentalities of the United States to make payments into | 0022| an unemployment fund under a state unemployment compensation | 0023| act, all of the provisions of the Unemployment Compensation | 0024| Law shall be applicable to such instrumentalities, and to | 0025| service performed for such instrumentalities in the same | 0001| manner, to the same extent and on the same terms as to all | 0002| other employers, employing units, individuals and services; | 0003| provided, that if this state shall not be certified for any | 0004| year by the secretary of labor of the United States under | 0005| Section 3304 of the federal Internal Revenue Code (26 U.S.C. | 0006| Section 3304), the payments required of such | 0007| instrumentalities with respect to such year shall be refunded | 0008| by the department from the fund in the same manner and within | 0009| the same period as is provided in Subsection D of Section | 0010| 51-1-36 NMSA 1978 with respect to contributions erroneously | 0011| collected; | 0012| (e) service performed in a facility | 0013| conducted for the purpose of carrying out a program of | 0014| rehabilitation for individuals whose earning capacity is | 0015| impaired by age or physical or mental deficiency or injury or | 0016| providing remunerative work for individuals who because of | 0017| their impaired physical or mental capacity cannot be readily | 0018| absorbed in the competitive labor market, by an individual | 0019| receiving such rehabilitation or remunerative work; | 0020| (f) service with respect to which | 0021| unemployment compensation is payable under an unemployment | 0022| compensation system established by an act of congress; | 0023| (g) service performed in the employ of | 0024| a foreign government, including service as a consular or | 0025| other officer or employee or a nondiplomatic representative; | 0001| (h) service performed by an individual | 0002| for a person as an insurance agent or as an insurance | 0003| solicitor, if all such service performed by such individual | 0004| for such person is performed for remuneration solely by way | 0005| of commission; | 0006| (i) service performed by an individual | 0007| under the age of eighteen in the delivery or distribution of | 0008| newspapers or shopping news, not including delivery or | 0009| distribution to any point for subsequent delivery or | 0010| distribution; | 0011| (j) service covered by an election | 0012| duly approved by the agency charged with the administration | 0013| of any other state or federal unemployment compensation law, | 0014| in accordance with an arrangement pursuant to Paragraph (1) | 0015| of Subsection A of Section 51-1-50 NMSA 1978 during the | 0016| effective period of such election; | 0017| (k) service performed, as part of an | 0018| unemployment work-relief or work-training program assisted or | 0019| financed in whole or part by any federal agency or an agency | 0020| of a state or political subdivision thereof, by an individual | 0021| receiving such work relief or work training; | 0022| (l) service performed by an individual | 0023| who is enrolled at a nonprofit or public educational | 0024| institution which normally maintains a regular faculty and | 0025| curriculum and normally has a regularly organized body of | 0001| students in attendance at the place where its educational | 0002| activities are carried on as a student in a full-time | 0003| program, taken for credit at such institution, which combines | 0004| academic instruction with work experience, if the service is | 0005| an integral part of such program, and the institution has so | 0006| certified to the employer, except that this subparagraph | 0007| shall not apply to service performed in a program established | 0008| for or on behalf of an employer or group of employers; | 0009| (m) service performed in the employ of | 0010| a hospital, if the service is performed by a patient of the | 0011| hospital, or services performed by an inmate of a custodial | 0012| or penal institution for a governmental entity or nonprofit | 0013| organization; | 0014| (n) service performed by real estate | 0015| salesmen for others when the services are performed for | 0016| remuneration solely by way of commission; | 0017| (o) service performed in the employ of | 0018| a school, college or university if such service is performed | 0019| by a student who is enrolled and is regularly attending | 0020| classes at such school, college or university; | 0021| (p) service performed by an individual | 0022| for a fixed or contract fee officiating at a sporting event | 0023| which is conducted by or under the auspices of a nonprofit or | 0024| governmental entity if that person is not otherwise an | 0025| employee of the entity conducting the sporting event; | 0001| (q) service performed for a private, | 0002| for-profit person or entity by an individual as a product | 0003| demonstrator or product merchandiser if the service is | 0004| performed pursuant to a written contract between that | 0005| individual and a person or entity whose principal business is | 0006| obtaining the services of product demonstrators and product | 0007| merchandisers for third parties, for demonstration and | 0008| merchandising purposes and the individual: 1) is compensated | 0009| for each job or the compensation is based on factors related | 0010| to the work performed; 2) provides the equipment used to | 0011| perform the service, unless special equipment is required and | 0012| provided by the manufacturer through an agency; 3) is | 0013| responsible for completion of a specific job and for any | 0014| failure to complete the job; 4) pays all expenses, and the | 0015| opportunity for profit or loss rests solely with the | 0016| individual; and 5) is responsible for operating costs, fuel, | 0017| repairs and motor vehicle insurance. For the purpose of this | 0018| subparagraph, "product demonstrator" means an individual who, | 0019| on a temporary, part-time basis, demonstrates or gives away | 0020| samples of a food or other product as part of an advertising | 0021| or sales promotion for the product and who is not otherwise | 0022| employed directly by the manufacturer, distributor or | 0023| retailer, and "product merchandiser" means an individual who, | 0024| on a temporary, part-time basis builds or resets a product | 0025| display and who is not otherwise directly employed by the | 0001| manufacturer, distributor or retailer; or | 0002| (r) service performed for a private | 0003| for-profit person or entity by an individual as a landman if | 0004| substantially all remuneration paid in cash or otherwise for | 0005| the performance of the services is directly related to the | 0006| completion by the individual of the specific tasks contracted | 0007| for rather than to the number of hours worked by the | 0008| individual. For the purposes of this subparagraph, "landman" | 0009| means a land professional who has been engaged primarily in: | 0010| 1) negotiating for the acquisition or divestiture of mineral | 0011| rights; 2) negotiating business agreements that provide for | 0012| the exploration for or development of minerals; 3) | 0013| determining ownership of minerals through the research of | 0014| public and private records; and 4) reviewing the status of | 0015| title, curing title defects and otherwise reducing title risk | 0016| associated with ownership of minerals; managing rights or | 0017| obligations derived from ownership of interests and minerals; | 0018| or utilizing or pooling of interest in minerals; and | 0019| (12) for the purposes of this subsection, if | 0020| the services performed during one-half or more of any pay | 0021| period by an individual for the person employing him | 0022| constitute employment, all the services of such individual | 0023| for such period shall be deemed to be employment but, if the | 0024| services performed during more than one-half of any such pay | 0025| period by an individual for the person employing him do not | 0001| constitute employment, then none of the services of such | 0002| individual for such period shall be deemed to be employment. | 0003| As used in this paragraph, the term "pay period" means a | 0004| period, of not more than thirty-one consecutive days, for | 0005| which a payment of remuneration is ordinarily made to the | 0006| individual by the person employing him. This paragraph shall | 0007| not be applicable with respect to services performed in a pay | 0008| period by an individual for the person employing him where | 0009| any of such service is excepted by Subparagraph (f) of | 0010| Paragraph (11) of this subsection; | 0011| G. "employment office" means a free public | 0012| employment office, or branch thereof, operated by this state | 0013| or maintained as a part of a state-controlled system of | 0014| public employment offices; | 0015| H. "fund" means the unemployment compensation | 0016| fund established by the Unemployment Compensation Law to | 0017| which all contributions and payments in lieu of contributions | 0018| required under the Unemployment Compensation Law and from | 0019| which all benefits provided under the Unemployment | 0020| Compensation Law shall be paid; | 0021| I. "unemployment" means, with respect to an | 0022| individual, any week during which he performs no services and | 0023| with respect to which no wages are payable to him and during | 0024| which he is not engaged in self-employment or receives an | 0025| award of back pay for loss of employment. The secretary | 0001| shall prescribe by regulation what constitutes part-time and | 0002| intermittent employment, partial employment and the | 0003| conditions under which individuals engaged in such employment | 0004| are eligible for partial unemployment benefits; | 0005| J. "state", when used in reference to any state | 0006| other than New Mexico, includes, in addition to the states of | 0007| the United States, the District of Columbia, the commonwealth | 0008| of Puerto Rico and the Virgin Islands; | 0009| K. "unemployment compensation administration | 0010| fund" means the fund established by Subsection A of Section | 0011| 51-1-34 NMSA 1978 from which administrative expenses under | 0012| the Unemployment Compensation Law shall be paid. "Employment | 0013| security department fund" means the fund established by | 0014| Subsection B of Section 51-1-34 NMSA 1978 from which certain | 0015| administrative expenses under the Unemployment Compensation | 0016| Law shall be paid; | 0017| L. "crew leader" means a person who: | 0018| (1) holds a valid certificate of | 0019| registration as a crew leader or farm labor contractor under | 0020| the Migrant and Seasonal Agricultural Worker Protection Act; | 0021| (2) furnishes individuals to perform | 0022| services in agricultural labor for any other person; | 0023| (3) pays, either on his own behalf or on | 0024| behalf of such other person, the individuals so furnished by | 0025| him for service in agricultural labor; and | 0001| (4) has not entered into a written agreement | 0002| with the other person for whom he furnishes individuals in | 0003| agricultural labor that such individuals will be the | 0004| employees of the other person; | 0005| M. "week" means such period of seven consecutive | 0006| days, as the secretary may by regulation prescribe. The | 0007| secretary may by regulation prescribe that a week shall be | 0008| deemed to be "in", "within" or "during" that benefit year | 0009| which includes the greater part of such week; | 0010| N. "calendar quarter" means the period of three | 0011| consecutive calendar months ending on March 31, June 30, | 0012| September 30 or December 31; | 0013| O. "insured work" means services performed for | 0014| employers who are covered under the Unemployment Compensation | 0015| Law; | 0016| P. "benefit year" with respect to any individual | 0017| means the one-year period beginning with the first day of the | 0018| first week of unemployment with respect to which the | 0019| individual first files a claim for benefits in accordance | 0020| with Subsection A of Section 51-1-8 NMSA 1978 and thereafter | 0021| the one-year period beginning with the first day of the first | 0022| week of unemployment with respect to which the individual | 0023| next files such a claim for benefits after the termination of | 0024| his last preceding benefit year; provided that at the time of | 0025| filing such a claim the individual has been paid the wages | 0001| for insured work required under Paragraph (5) of Subsection A | 0002| of Section 51-1-5 NMSA 1978; | 0003| Q. "agricultural labor" includes all services | 0004| performed: | 0005| (1) on a farm, in the employ of any person, | 0006| in connection with cultivating the soil or in connection with | 0007| raising or harvesting any agricultural or horticultural | 0008| commodity, including the raising, shearing, feeding, caring | 0009| for, training and management of livestock, bees, poultry and | 0010| fur-bearing animals and wildlife; | 0011| (2) in the employ of the owner or tenant or | 0012| other operator of a farm, in connection with the operation, | 0013| management, conservation or maintenance of such farm and its | 0014| tools and equipment, if the major part of such service is | 0015| performed on a farm; | 0016| (3) in connection with the operation or | 0017| maintenance of ditches, canals, reservoirs or waterways used | 0018| exclusively for supplying and storing water for farming | 0019| purposes when such ditches, canals, reservoirs or waterways | 0020| are owned and operated by the farmers using the water stored | 0021| or carried therein; and | 0022| (4) in handling, planting, drying, packing, | 0023| packaging, processing, freezing, grading, storing or delivery | 0024| to storage or to market or to a carrier for transportation to | 0025| market any agricultural or horticultural commodity but only | 0001| if such service is performed as an incident to ordinary | 0002| farming operations. The provisions of this paragraph shall | 0003| not be deemed to be applicable with respect to service | 0004| performed in connection with commercial canning or commercial | 0005| freezing or in connection with any agricultural or | 0006| horticultural commodity after its delivery to a terminal | 0007| market for distribution for consumption. | 0008| As used in this subsection, the term "farm" includes | 0009| stock, dairy, poultry, fruit, fur-bearing animal and truck | 0010| farms, plantations, ranches, nurseries, greenhouses, ranges | 0011| and orchards; | 0012| R. "payments in lieu of contributions" means the | 0013| money payments made into the fund by an employer pursuant to | 0014| the provisions of Subsection A of Section 51-1-13 NMSA 1978; | 0015| S. "department" means the labor department; and | 0016| T. "wages" means all remuneration for services, | 0017| including commissions and bonuses and the cash value of all | 0018| remuneration in any medium other than cash. The reasonable | 0019| cash value of remuneration in any medium other than cash | 0020| shall be established and determined in accordance with | 0021| regulations prescribed by the secretary; provided that the | 0022| term "wages" shall not include: | 0023| (1) subsequent to December 31, 1977, that | 0024| part of the remuneration in excess of the base wage as | 0025| determined by the secretary for each calendar year. The base | 0001| wage upon which contribution shall be paid during any | 0002| calendar year shall be sixty-five percent of the state's | 0003| average annual earnings computed by the department by | 0004| dividing total wages reported to the department by | 0005| contributing employers for the second preceding calendar year | 0006| before the calendar year the computed base wage becomes | 0007| effective by the average annual employment reported by | 0008| contributing employers for the same period rounded to the | 0009| next higher multiple of one hundred dollars ($100); provided | 0010| that the base wage so computed for any calendar year shall | 0011| not be less than seven thousand dollars ($7,000). Wages paid | 0012| by an employer to an individual in his employ during any | 0013| calendar year in excess of the base wage in effect for that | 0014| calendar year shall be reported to the department but shall | 0015| be exempt from the payment of contributions unless such wages | 0016| paid in excess of the base wage become subject to tax under a | 0017| federal law imposing a tax against which credit may be taken | 0018| for contributions required to be paid into a state | 0019| unemployment fund; | 0020| (2) the amount of any payment with respect | 0021| to services performed after June 30, 1941 to or on behalf of | 0022| an individual in its employ under a plan or system | 0023| established by an employing unit which makes provision for | 0024| individuals in its employ generally or for a class or classes | 0025| of such individuals, including any amount paid by an | 0001| employing unit for insurance or annuities, or into a fund, to | 0002| provide for any such payment, on account of: | 0003| (a) retirement if such payments are | 0004| made by an employer to or on behalf of any employee under a | 0005| simplified employee pension plan that provides for payments | 0006| by an employer in addition to the salary or other | 0007| remuneration normally payable to such employee or class of | 0008| such employees and does not include any payments which | 0009| represent deferred compensation or other reduction of an | 0010| employee's normal taxable wages or remuneration or any | 0011| payments made to a third party on behalf of an employee as | 0012| part of an agreement of deferred remuneration; | 0013| (b) sickness or accident disability if | 0014| such payments are received under a workers' compensation or | 0015| occupational disease disablement law; | 0016| (c) medical and hospitalization | 0017| expenses in connection with sickness or accident disability; | 0018| or | 0019| (d) death; | 0020| provided the individual in its employ has not the option to | 0021| receive, instead of provision for such death benefit, any | 0022| part of such payment, or, if such death benefit is insured, | 0023| any part of the premiums or contributions to premiums paid by | 0024| his employing unit and has not the right under the provisions | 0025| of the plan or system or policy of insurance providing for | 0001| such death benefit to assign such benefit, or to receive a | 0002| cash consideration in lieu of such benefit either upon his | 0003| withdrawal from the plan or system providing for such benefit | 0004| or upon termination of such plan or system or policy of | 0005| insurance or of his service with such employing unit; | 0006| (3) remuneration for agricultural labor paid | 0007| in any medium other than cash; | 0008| (4) any payment made to, or on behalf of, an | 0009| employee or an employee's beneficiary under a cafeteria plan | 0010| within the meaning of Section 125 of the federal Internal | 0011| Revenue Code of 1986; | 0012| (5) any payment made, or benefit furnished | 0013| to or for the benefit of an employee if at the time of such | 0014| payment or such furnishing it is reasonable to believe that | 0015| the employee will be able to exclude such payment or benefit | 0016| from income under Section 129 of the federal Internal Revenue | 0017| Code of 1986; or | 0018| (6) any payment made by an employer to a | 0019| survivor or the estate of a former employee after the | 0020| calendar year in which such employee died." | 0021| Section 2. EFFECTIVE DATE.--The effective date of the | 0022| provisions of this act is July 1, 1997. | 0023| |