0001| HOUSE BILL 375 | 0002| 42ND LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, | 0003| 1996 | 0004| INTRODUCED BY | 0005| TERRY T. MARQUARDT | 0006| | 0007| | 0008| | 0009| | 0010| | 0011| AN ACT | 0012| RELATING TO UNEMPLOYMENT COMPENSATION; PROVIDING FOR VOLUNTARY | 0013| WITHHOLDING OF FEDERAL INCOME TAX. | 0014| | 0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0016| Section 1. Section 51-1-8 NMSA 1978 (being Laws 1936 | 0017| (S.S.), Chapter 1, Section 6, as amended) is amended to read: | 0018| "51-1-8. CLAIMS FOR BENEFITS.-- | 0019| A. Claims for benefits shall be made in accordance | 0020| with such regulations as the secretary may prescribe. Each | 0021| employer shall post and maintain printed notices, in places | 0022| readily accessible to employees, concerning their rights to file | 0023| claims for unemployment benefits upon termination of their | 0024| employment. Such notices shall be supplied by the division to | 0025| each employer without cost to him. | 0001| B. A representative designated by the secretary as a | 0002| claims examiner shall promptly examine the application and each | 0003| weekly claim and, on the basis of the facts found, shall | 0004| determine whether the claimant is unemployed, the week with | 0005| respect to which benefits shall commence, the weekly benefit | 0006| amount payable, the maximum duration of benefits, whether the | 0007| claimant is eligible for benefits pursuant to Section 51-1-5 | 0008| NMSA 1978 and whether the claimant shall be disqualified | 0009| pursuant to Section 51-1-7 NMSA 1978. With the approval of the | 0010| secretary, the claims examiner may refer, without determination, | 0011| claims or any specified issues involved therein that raise | 0012| complex questions of fact or law to a hearing officer for the | 0013| division for a fair hearing and decision in accordance with the | 0014| procedure described in Subsection D of this section. The claims | 0015| examiner shall promptly notify the claimant and any other | 0016| interested party of the determination and the reasons therefor. | 0017| Unless the claimant or any such interested party, within fifteen | 0018| calendar days after the date of notification or mailing of such | 0019| determination, files an appeal from such determination, such | 0020| determination shall be the final decision of the division; | 0021| provided that the claims examiner may reconsider a nonmonetary | 0022| determination if additional information not previously available | 0023| is provided or obtained or whenever he finds an error in the | 0024| application of law has occurred, but no redetermination shall be | 0025| made more than twenty days from the date of the initial | 0001| nonmonetary determination. Notice of a nonmonetary | 0002| redetermination shall be given to all interested parties and | 0003| shall be subject to appeal in the same manner as the original | 0004| nonmonetary determination. If an appeal is pending at the time | 0005| a redetermination is issued, the appeal, unless withdrawn, shall | 0006| be treated as an appeal from such redetermination. | 0007| C. In the case of a claim for waiting period credit | 0008| or benefits, "interested party", for purposes of determinations | 0009| and adjudication proceedings and notices thereof, means: | 0010| (1) in the event of an issue concerning a | 0011| separation from work for reasons other than lack of work, the | 0012| claimant's most recent employer or most recent employing unit; | 0013| (2) in the event of an issue concerning a | 0014| separation from work for lack of work, the employer or employing | 0015| unit from whom the claimant separated for reasons other than | 0016| lack of work if he has not worked and earned wages in insured | 0017| work or bona fide employment other than self-employment in an | 0018| amount equal to or exceeding five times his weekly benefit | 0019| amount; or | 0020| (3) in all other cases involving the allowance | 0021| or disallowance of a claim, the secretary, the claimant and any | 0022| employing unit directly involved in the facts at issue. | 0023| D. Upon appeal by any party, a hearing officer | 0024| designated by the secretary shall afford the parties reasonable | 0025| opportunity for a fair hearing to be held de novo, and the | 0001| hearing officer shall issue findings of fact and a decision | 0002| which affirms, modifies or reverses the determination of the | 0003| claims examiner or tax representative on the facts or the law, | 0004| based upon the evidence introduced at such hearing, including | 0005| the documents and statements in the claim or tax records of | 0006| the [department] division. All hearings shall be held in | 0007| accordance with regulations of the secretary and decisions | 0008| issued promptly in accordance with time lapse standards | 0009| promulgated by the secretary of the United States department of | 0010| labor. The parties shall be duly notified of the decision, | 0011| together with the reasons therefor, which shall be deemed to be | 0012| the final decision of the department, unless within fifteen days | 0013| after the date of notification or mailing of such decision | 0014| further appeal is initiated pursuant to Subsection H of this | 0015| section. | 0016| E. Except with the consent of the parties, no | 0017| hearing officer or members of the board of review, established | 0018| in Subsection F of this section, or secretary shall sit in any | 0019| administrative or adjudicatory proceeding in which: | 0020| (1) either of the parties is related to him by | 0021| affinity or consanguinity within the degree of first cousin; | 0022| (2) he was counsel for either party in that | 0023| action; or | 0024| (3) he has an interest which would prejudice | 0025| his rendering an impartial decision. | 0001| The secretary, any member of the board of review or appeal | 0002| tribunal hearing officer shall withdraw from any proceeding in | 0003| which he cannot accord a fair and impartial hearing. Any party | 0004| may request a disqualification of any appeal tribunal hearing | 0005| officer or board of review member by filing an affidavit with | 0006| the board of review or appeal tribunal promptly upon discovery | 0007| of the alleged grounds for disqualification, stating with | 0008| particularity the grounds upon which it is claimed that the | 0009| person cannot be fair and impartial. The disqualification shall | 0010| be mandatory if sufficient factual basis is set forth in the | 0011| affidavit of disqualification. If a member of the board of | 0012| review is disqualified or withdraws from any proceeding, the | 0013| remaining members of the board of review may appoint an appeal | 0014| tribunal hearing officer to sit on the board of review for the | 0015| proceeding involved. | 0016| F. There is established within the department for | 0017| the purpose of providing higher level administrative appeal and | 0018| review of determinations of a claims examiner or decisions | 0019| issued by a hearing officer pursuant to Subsection B or D of | 0020| this section a "board of review" consisting of three members. | 0021| Two members shall be appointed by the governor with the consent | 0022| of the senate. The members so appointed shall hold office at | 0023| the pleasure of the governor for terms of four years. One | 0024| member appointed by the governor shall be a person who, on | 0025| account of his previous vocation, employment or affiliation, can | 0001| be classed as a representative of employers, and the other | 0002| member appointed by the governor shall be a person who, on | 0003| account of his previous vocation, employment or affiliation, can | 0004| be classed as a representative of employees. The third member | 0005| shall be an employee of the department appointed by the | 0006| secretary who shall serve as chairman of the board. Either | 0007| member of the board of review appointed by the governor who has | 0008| missed two consecutive meetings of the board may be removed from | 0009| the board by the governor. Actions of the board shall be taken | 0010| by majority vote. If a vacancy on the board in a position | 0011| appointed by the governor occurs between sessions of the | 0012| legislature, the position shall be filled by the governor until | 0013| the next regular legislative session. The board shall meet at | 0014| the call of the secretary. Members of the board appointed by | 0015| the governor shall be paid per diem and mileage in accordance | 0016| with the Per Diem and Mileage Act for necessary travel to attend | 0017| regularly scheduled meetings of the board of review for the | 0018| purpose of conducting the board's appellate and review duties. | 0019| G. The board of review shall hear and review all | 0020| cases appealed in accordance with Subsection H of this section. | 0021| The board of review may modify, affirm or reverse the decision | 0022| of the hearing officer or remand any matter to the claims | 0023| examiner, tax representative or hearing officer for further | 0024| proceedings. Each member appointed by the governor shall be | 0025| compensated at the rate of fifteen dollars ($15.00) for each | 0001| case reviewed up to a maximum compensation of twelve thousand | 0002| dollars ($12,000) in any one fiscal year. | 0003| H. Any party aggrieved by a final decision of a | 0004| hearing officer may file, in accordance with regulations | 0005| prescribed by the secretary, an application for appeal and | 0006| review of such decision with the secretary. The secretary shall | 0007| review the application and shall, within fifteen days after | 0008| receipt of the application, either affirm the decision of the | 0009| hearing officer, remand the matter to the hearing officer | 0010| or the claims examiner for an additional hearing or refer the | 0011| decision to the board of review for further review and decision | 0012| on the merits of the appeal. If the secretary affirms the | 0013| decision of the hearing officer, that decision shall be the | 0014| final administrative decision of the department and any appeal | 0015| therefrom [must] shall be taken to the district court in | 0016| accordance with the provisions of Subsections M and N of this | 0017| section. If the secretary remands a matter to a hearing officer | 0018| for an additional hearing, judicial review shall be permitted | 0019| only after issuance of a final administrative decision. If the | 0020| secretary refers the decision of the hearing officer to the | 0021| board of review for further review, the board's decision on the | 0022| merits of the appeal will be the final administrative decision | 0023| of the department, which may be appealed to the district court | 0024| in accordance with the provisions of Subsections M and N of this | 0025| section. If the secretary takes no action within fifteen days | 0001| of receipt of the application for appeal and review, the | 0002| decision will be promptly scheduled for review by the board of | 0003| review as though it had been referred by the secretary. The | 0004| secretary may request the board of review to review a decision | 0005| of a hearing officer that the secretary believes to be | 0006| inconsistent with the law or with applicable rules of | 0007| interpretation or that is not supported by the evidence, and the | 0008| board of review shall grant the request if it is filed within | 0009| fifteen days of the issuance of the decision of the hearing | 0010| officer. The secretary may also direct that any pending | 0011| determination or adjudicatory proceeding be removed to the board | 0012| of review for a final decision. If the board of review holds a | 0013| hearing on any matter, the hearing shall be conducted by a | 0014| quorum of the board of review in accordance with regulations | 0015| prescribed by the secretary for hearing appeals. The board of | 0016| review shall promptly notify the interested parties of its | 0017| findings of fact and decision. A decision of the board of | 0018| review on any disputed matter reviewed and decided by it shall | 0019| be based upon the law and the lawful rules of interpretation | 0020| issued by the secretary, and it shall be the final | 0021| administrative decision of the department, except in cases of | 0022| remand. If the board of review remands a matter to a hearing | 0023| officer, claims examiner or tax representative, judicial review | 0024| shall be permitted only after issuance of a final administrative | 0025| decision. | 0001| I. Notwithstanding any other provision of this | 0002| section granting any party the right to appeal, benefits shall | 0003| be paid promptly in accordance with a determination or a | 0004| decision of a claims examiner, hearing officer, secretary, board | 0005| of review or a reviewing court, regardless of the pendency of | 0006| the period to file an appeal or petition for judicial review | 0007| that is provided with respect thereto in Subsection D or M of | 0008| this section or the pendency of any such filing or petition | 0009| until such determination or decision has been modified or | 0010| reversed by a subsequent decision. The provisions of this | 0011| subsection shall apply to all claims for benefits pending on the | 0012| date of its enactment. | 0013| J. If a prior determination or decision allowing | 0014| benefits is affirmed by a decision of the department, including | 0015| the board of review or a reviewing court, such benefits shall be | 0016| paid promptly regardless of any further appeal which may | 0017| thereafter be available to the parties, and no injunction, | 0018| supersedeas, stay or other writ or process suspending the | 0019| payment of such benefits shall be issued by the secretary or | 0020| board of review or any court, and no action to recover such | 0021| benefits paid to a claimant shall be taken. If a determination | 0022| or decision allowing benefits is finally modified or reversed, | 0023| the appropriate contributing employer's account will be relieved | 0024| of benefit charges in accordance with Subsection B of Section | 0025| 51-1-11 NMSA 1978. | 0001| K. The manner in which disputed claims shall be | 0002| presented, the reports thereon required from the claimant and | 0003| from employers and the conduct of hearings and appeals shall be | 0004| in accordance with rules prescribed by the secretary for | 0005| determining the rights of the parties, whether or not such rules | 0006| conform to common law or statutory rules of evidence and other | 0007| technical rules of procedure. A hearing officer or the board of | 0008| review may refer to the secretary for interpretation any | 0009| question of controlling legal significance, and the secretary | 0010| shall issue a declaratory interpretation, which shall be binding | 0011| upon the decision of the hearing officer and the board of | 0012| review. A full and complete record shall be kept of all | 0013| proceedings in connection with a disputed claim. All testimony | 0014| at any hearing upon a disputed claim shall be recorded but need | 0015| not be transcribed unless the disputed claim is appealed to the | 0016| district court. | 0017| L. Witnesses subpoenaed pursuant to this section | 0018| shall be allowed fees at a rate fixed by the secretary. Such | 0019| fees and all administrative expenses of proceedings involving | 0020| disputed claims shall be deemed a part of the expense of | 0021| administering the Unemployment Compensation Law. | 0022| M. Any determination or decision of a claims | 0023| examiner or hearing officer or by a representative of the tax | 0024| section of the department in the absence of an appeal therefrom | 0025| as provided by this section shall become final fifteen days | 0001| after the date of notification or mailing thereof, and judicial | 0002| review thereof shall be permitted only after any party claiming | 0003| to be aggrieved thereby has exhausted his remedies as provided | 0004| in Subsection H of this section. The division and any employer | 0005| or claimant who is affected by the decision shall be joined as a | 0006| party in any judicial action involving any such decision. All | 0007| parties shall be served with an endorsed copy of the petition | 0008| within thirty days from the date of filing and an endorsed copy | 0009| of the order granting the petition within fifteen days from | 0010| entry of the order. Service on the department shall be made on | 0011| the secretary or his designated legal representative either by | 0012| mail with accompanying certification of service or by personal | 0013| service. The division may be represented in any such judicial | 0014| action by an attorney employed by the department or, when | 0015| requested by the secretary, by the attorney general or any | 0016| district attorney. | 0017| N. The final decision of the secretary or board of | 0018| review upon any disputed matter may be reviewed both upon the | 0019| law, including the lawful rules of interpretation issued by the | 0020| secretary, and the facts by the district court of the county | 0021| wherein the person seeking the review resides upon certiorari, | 0022| unless it is determined by the district court where the petition | 0023| is filed that, as a matter of equity and due process, venue | 0024| should be in a different county. For the purpose of such | 0025| review, the division shall return on such certiorari the reports | 0001| and all of the evidence heard by it on any such reports and all | 0002| the papers and documents in its files affecting the matters and | 0003| things involved in such certiorari. The district court shall | 0004| render its judgment after hearing, and either the department or | 0005| any other party thereto affected may appeal from such judgment | 0006| to the [supreme court of the state] court of appeals in | 0007| accordance with the rules [governing special statutory | 0008| proceedings] of appellate procedure. Such certiorari shall | 0009| not be granted unless the same is applied for within thirty days | 0010| from the date of the final decision of the secretary or board of | 0011| review. Such certiorari shall be heard in a summary manner and | 0012| shall be given precedence over all other civil cases except | 0013| cases arising under the Workers' Compensation Act of this state. | 0014| It shall not be necessary in any proceedings before the division | 0015| to enter exceptions to the rulings and no bond shall be required | 0016| in obtaining certiorari from the district court as hereinabove | 0017| provided, but such certiorari shall be granted as a matter of | 0018| right to the party applying therefor." | 0019| Section 2. A new section of the Unemployment Compensation | 0020| Law is enacted to read: | 0021| "[NEW MATERIAL] VOLUNTARY WITHHOLDING OF FEDERAL INCOME | 0022| TAX.-- | 0023| A. Every individual filing a new claim for | 0024| unemployment compensation shall, at the time of filing such | 0025| claim, be advised in writing that: | 0001| (1) unemployment compensation is subject to | 0002| federal, state and local income tax; | 0003| (2) requirements exist pertaining to estimated | 0004| tax payments; | 0005| (3) the individual may elect to have federal | 0006| income tax deducted and withheld from the individual's | 0007| unemployment compensation payments at the amount specified in | 0008| the Internal Revenue Code of 1986; and | 0009| (4) the individual is permitted to change a | 0010| previously elected withholding status one time during each | 0011| benefit year. | 0012| B. Amounts deducted and withheld from unemployment | 0013| compensation shall remain in the fund until transferred to the | 0014| federal internal revenue service. | 0015| C. The division shall follow all procedures | 0016| specified by the United States department of labor and the | 0017| federal internal revenue service pertaining to the deducting and | 0018| withholding of income tax. | 0019| D. Amounts shall be deducted and withheld under this | 0020| section only after amounts are deducted and withheld for any | 0021| overpayments of unemployment compensation, child support | 0022| obligations or any other amounts required to be deducted and | 0023| withheld under the Unemployment Compensation Law. | 0024| E. The provisions of this section apply to | 0025| unemployment compensation payments made after December 31, | 0001| 1996." | 0002| Section 3. EFFECTIVE DATE.--The effective date of the | 0003| provisions of this act is July 1, 1996. | 0004|  | 0005| State of New Mexico | 0006| House of Representatives | 0007| | 0008| FORTY-SECOND LEGISLATURE | 0009| SECOND SESSION, 1996 | 0010| | 0011| | 0012| February 6, 1996 | 0013| | 0014| | 0015| Mr. Speaker: | 0016| | 0017| Your BUSINESS AND INDUSTRY COMMITTEE, to whom has | 0018| been referred | 0019| | 0020| HOUSE BILL 375 | 0021| | 0022| has had it under consideration and reports same with | 0023| recommendation that it DO PASS, and thence referred to the | 0024| TAXATION AND REVENUE COMMITTEE. | 0025| | 0001| Respectfully submitted, | 0002| | 0003| | 0004| | 0005| | 0006| Fred Luna, Chairman | 0007| | 0008| | 0009| Adopted Not Adopted | 0010| | 0011| (Chief Clerk) (Chief Clerk) | 0012| | 0013| Date | 0014| | 0015| The roll call vote was 7 For 0 Against | 0016| Yes: 7 | 0017| Excused: Gubbels, Olguin, Taylor, Varela, Rodella | 0018| Absent: None | 0019| | 0020| | 0021| | 0022| | 0023| H0375BI1 State of New Mexico | 0024| House of Representatives | 0025| | 0001| FORTY-SECOND LEGISLATURE | 0002| SECOND SESSION, 1996 | 0003| | 0004| | 0005| February 9, 1996 | 0006| | 0007| | 0008| Mr. Speaker: | 0009| | 0010| Your TAXATION AND REVENUE COMMITTEE, to whom has | 0011| been referred | 0012| | 0013| HOUSE BILL 375 | 0014| | 0015| has had it under consideration and reports same with | 0016| recommendation that it DO PASS, and thence referred to the | 0017| APPROPRIATIONS AND FINANCE COMMITTEE. | 0018| | 0019| Respectfully submitted, | 0020| | 0021| | 0022| | 0023| | 0024| Jerry W. Sandel, Chairman | 0025| | 0001| | 0002| Adopted Not Adopted | 0003| | 0004| (Chief Clerk) (Chief Clerk) | 0005| | 0006| Date | 0007| | 0008| The roll call vote was 8 For 0 Against | 0009| Yes: 8 | 0010| Excused: Gallegos, Lovejoy, Sandoval | 0011| Absent: Crook, Hawkins, | 0012| | 0013| | 0014| | 0015| H0375TR1 | 0016| | 0017| FORTY-SECOND LEGISLATURE | 0018| SECOND SESSION, 1996 | 0019| | 0020| | 0021| February 12, 1996 | 0022| | 0023| Mr. President: | 0024| | 0025| Your CORPORATIONS & TRANSPORTATION COMMITTEE, to | 0001| whom has been referred | 0002| | 0003| HOUSE BILL 375 | 0004| | 0005| has had it under consideration and reports same with | 0006| recommendation that it DO PASS, and thence referred to the | 0007| FINANCE COMMITTEE. | 0008| | 0009| Respectfully submitted, | 0010| | 0011| | 0012| | 0013| __________________________________ | 0014| Roman M. Maes, III, Chairman | 0015| | 0016| | 0017| | 0018| Adopted_______________________ Not Adopted_______________________ | 0019| (Chief Clerk) (Chief Clerk) | 0020| | 0021| | 0022| Date ________________________ | 0023| | 0024| | 0025| The roll call vote was 7 For 0 Against | 0001| Yes: 7 | 0002| No: 0 | 0003| Excused: McKibben, Robinson | 0004| Absent: None | 0005| | 0006| | 0007| H0375CT1 | 0008| | 0009| | 0010| | 0011| FORTY-SECOND LEGISLATURE | 0012| SECOND SESSION, 1996 | 0013| | 0014| | 0015| February 13, 1996 | 0016| | 0017| Mr. President: | 0018| | 0019| Your FINANCE COMMITTEE, to whom has been referred | 0020| | 0021| HOUSE BILL 375 | 0022| | 0023| has had it under consideration and reports same with | 0024| recommendation that it DO PASS. | 0025| | 0001| Respectfully submitted, | 0002| | 0003| | 0004| | 0005| __________________________________ | 0006| Ben D. Altamirano, Chairman | 0007| | 0008| | 0009| | 0010| Adopted_______________________ Not Adopted_______________________ | 0011| (Chief Clerk) (Chief Clerk) | 0012| | 0013| | 0014| | 0015| Date ________________________ | 0016| | 0017| | 0018| The roll call vote was 7 For 0 Against | 0019| Yes: 7 | 0020| No: 0 | 0021| Excused: Aragon, Donisthorpe, Ingle, Jennings T., Macias, Nava | 0022| Absent: None | 0023| | 0024| | 0025| H0375FC1 | 0001| |