New Mexico Register / Volume XXIX,
Issue 20 / October 30, 2018
TITLE 11 LABOR AND WORKERS COMPENSATION
CHAPTER 3 EMPLOYMENT SECURITY
PART 300 CLAIMS ADMINISTRATION
11.3.300.1 ISSUING AGENCY: New Mexico Department of Workforce Solutions,
Employment Security Division, P.O. Box 1928
Albuquerque, NM 87103.
[11.3.300.1
NMAC – Rp, 11.3.300.1 NMAC, 11/1/2018]
11.3.300.2 SCOPE: General public
[11.3.300.2
NMAC – Rp, 11.3.300.2 NMAC, 11/1/2018]
11.3.300.3 STATUTORY AUTHORITY: Sections 51-1-1 to 51-1-59, NMSA 1978.
[11.3.300.3
NMAC – Rp, 11.3.300.3 NMAC, 11/1/2018]
11.3.300.4 DURATION: Permanent
[11.3.300.4
NMAC – Rp, 11.3.300.4 NMAC, 11/1/2018]
11.3.300.5 EFFECTIVE DATE: November 1, 2018, unless a different date is
cited at the end of a section.
[11.3.300.5
NMAC – Rp, 11.3.300.5 NMAC, 11/1/2018]
11.3.300.6 OBJECTIVE: The purpose of this rule is to provide
clarification of the Unemployment Compensation Law. This rule assists claimants and employers in
better understanding how specific sections of the law are administered by the
department. The rule also assists claimants and employers to better comply and
better understand the department's procedures.
[11.3.300.6
NMAC – Rp, 11.3.300.6 NMAC, 11/1/2018]
11.3.300.7 DEFINITIONS:
A. “Additional
claim” means a claim application which reactivates a claim during an existing
benefit year or other eligibility period and certifies to a period of
employment other than self-employment which occurred subsequent to the date of
filing the last initial, additional or reopened claim.
B. “Agent state”
means any state in which an individual files a claim for benefits from another
state or states.
C. “Alternate base
period” means the last four completed quarters immediately preceding
the first day of the claimant's benefit year.
D. “Base period and
benefit year” means the base period and benefit year applicable under the
unemployment compensation law of the paying state.
E. “Base period”,
also called the “regular base period”, means the first four of the last five
completed quarters as provided in Subsection A of Section
51-1-42 NMSA 1978 or the alternate base period.
F. “Benefits” means
the unemployment insurance compensation benefits payable to a claimant with
respect to their unemployment, under the unemployment insurance law of any
state.
G. “Claimant” means
an individual who has filed an initial claim, additional claim or reopened
claim for unemployment compensation benefits and this filing is within a benefit
year or other eligibility period.
H. “Combined-wage
claimant” means a claimant who uses wages from more than one state to establish
monetary eligibility for benefits and who has filed a claim under this
arrangement.
I. “Educational or
training institution or program” means any primary school, secondary school or
institution of higher education, public or private, which offers instruction,
either for a fee or without charge, and which requires attendance and
participation, either in person or online, to receive the instruction.
J. “Emergency
unemployment compensation” (EUC) occurs when regular unemployment benefits are
exhausted and extended for additional weeks.
Unemployment extensions are created by passing new legislation at the
federal level, often referred to as an “unemployment
extension bill”. This new legislation is
introduced and passed during high or above average unemployment rates.
K. “Employment”
means all services which are covered under the unemployment compensation law of
a state, whether expressed in terms of weeks of work or otherwise.
L. “Full-time
employment” means the normal full-time hours customarily scheduled and
prevailing in the establishment in which an individual is employed, but in no
event less than 32 hours per week.
M. “Good cause”
means a substantial reason, one that affords a legal excuse, a legally
sufficient ground or reason. In
determining whether good cause has been shown for permitting an untimely action
or excusing the failure to act as required, the department may consider any
relevant factors including, but not limited to, whether the party acted in the
manner that a reasonably prudent individual would have acted under the same or
similar circumstances, whether the party received timely notice of the need to
act, whether there was administrative error by the department, whether there
were factors outside the control of the party that prevented a timely action,
the efforts made by the party to seek an extension of time by promptly
notifying the department, the party’s physical inability to take timely action,
the length of time the action was untimely, and whether any other interested
party has been prejudiced by the untimely action. However, good cause cannot be
established to accept or permit an untimely action or to excuse the failure to
act, as required, that was caused by failure to keep the department directly
and promptly informed of the claimant’s, employer’s or employing unit’s correct
address. A written decision concerning
the existence of good cause need not contain findings of fact on every relevant
factor, but the basis for the decision must be apparent from the order.
N. “Initial claim”
means a new claim application submitted by the claimant to establish a benefit
year and to obtain a determination of weekly and maximum benefit amounts.
O. “Instruction”
means all teaching or opportunity for learning whether of a vocational or
academic nature.
P. “Interstate
benefit payment plan” means the plan approved by the interstate conference of
employment security agencies as approved by the United States secretary of
labor under which benefits shall be payable to unemployed individuals absent
from the state or states in which benefit credits have been accumulated.
Q. “Interstate
claimant” means an individual who claims benefits under the unemployment
insurance law of one or more liable states through the facilities of an agent
state. The term “interstate claimant” shall not include any individual who
customarily commutes from a residence in an agent state to work in a liable
state unless the department finds that this exclusion would create undue
hardship on such claimants in specified areas.
R. “Last employer”
means the most recent employer or employing unit from which the claimant
separated for reasons other than lack of work; or in the event that the
claimant separated from the most recent employer for lack of work, the employer
or employing unit before that from which the claimant separated for any reason
other than lack of work, provided the claimant has not subsequently worked and
earned wages in insured work or bona fide employment other than self-employment
in an amount equal to or exceeding five times the claimant's weekly benefit
amount.
S. “Liable state”
means any state against which a claimant files, through another state, a claim
for benefits.
T. “Paying state”
means the state against which the claimant is filing that actually issues the
benefit payment.
U. “Real estate
salesperson” means an individual who is licensed by the New Mexico real estate
commission.
V. “Regular base
period” means the first four of the last five completed quarters as provided in
Subsection A of Section 51-1-42 NMSA 1978.
W. “Reopened claim”
means a claim application which reactivates a claim during an existing benefit
year or other eligibility period and certifies to a continuous period of
unemployment for which the claimant did not file timely continued claims and
during which the claimant either remained unemployed or had a period of
self-employment since last reporting on this claim.
X. “State” means
the states of the United States of America, the District of Columbia, the
Commonwealth of Puerto Rico and the Virgin Islands.
Y. “Student” means
any individual enrolled in an educational or training institution or program.
Z. “Trade
adjustment assistance” (TAA) is a federal program that provides a variety of
reemployment services including training and job-searching assistance and
benefits to displaced workers who have lost their jobs or suffered a reduction
of hours and wages as a result of increased imports or shifts in production
outside the United States.
AA. “Trade readjustment
allowances” (TRA) are income support payments to individuals who have exhausted
unemployment benefits and whose jobs were affected by foreign imports as
determined by a certification of group coverage issued by the Department of
Labor.
BB. “Transitional claim” means a claim filed to request a
determination of eligibility and establishment of a new benefit year having an
effective date within a seven-day period immediately following the benefit year
ending date and a week for which compensation or waiting week credit was claimed;
i.e. continuous certification.
CC. “Wages” means all compensation
for services, including commissions and bonuses and the cash value of all compensation
in any medium other than cash.
DD. “Week of
unemployment” means any week of unemployment as defined in the law of the
liable state from which benefits with respect to such week are claimed.
[11.3.300.7
NMAC – Rp, 11.3.300.7 NMAC, 11/1/2018]
11.3.300.8
THROUGH 300 [RESERVED]
11.3.300.301 FILING
INITIAL, ADDITIONAL AND REOPENED CLAIMS:
A. Upon filing an
initial claim, an additional claim, or a reopened claim, the claimant shall be
subject to a waiting week period before the commencement of benefits
begins.
B. Unless otherwise
prescribed, any claimant wishing to claim benefits shall register for work,
file an initial, additional, transitional or reopened claim for benefits and
provide the name and address of their last employer.
C. The date of
filing of any initial, additional or reopened claim shall be the Sunday of the
week in which filed. Upon a showing of
good cause, any initial claim or additional claim may be back-dated to the
Sunday of the week immediately following the week in which the claimant was
separated, and any reopened claim may be back-dated up to a maximum of
twenty-one days from the preceding Sunday of the date of the request for
back-dating. “Good cause,” as used in
11.3.300.301 NMAC, exists when it is established that factors or circumstances
beyond the reasonable control of the claimant caused the delay in filing. All requests for back-dating or post-dating
shall include a fact-finding report.
D. Unless otherwise
prescribed, all claims shall be made online or by phone, giving all information
required thereby. A claimant shall also
separately register for work within 14 calendar days of the date the claim is
filed. If a claimant is already
registered with the department from a prior claim, the registration must be
reactivated within 14 days of the date the claim is filed. If a claimant’s registration is not current
with the department, their benefits shall be temporarily withheld until they
comply unless good cause for the failure to register is shown.
[11.3.300.301
NMAC – Rp, 11.3.300.301 NMAC, 11/1/2018]
11.3.300.302 FILING CONTINUED CLAIMS: In order to establish and maintain eligibility
for benefits a claimant cannot be subject to an administrative penalty pursuant
to Subsection C of 11.3.300.314 NMAC, shall continue to report weekly as
directed, and file continued claims for benefits online, by phone, or as otherwise
prescribed by the department providing the information setting forth that:.
A. the claimant is
continuing their claim for benefits;
B. the claimant is
unemployed or partially unemployed;
C. the claimant has
registered for reemployment services;
D. since the
claimant las registered for reemployment services, the claimant has not
performed services or earned wages, except as indicated;
E. claimant is able
to work, available for work, and actively seeking work; and
F. the claimant
shall provide to the department their most current mailing or email
address. It is the claimant’s
responsibility to maintain a current address with the department.
[11.3.300.302
NMAC – Rp, 11.3.300.302 NMAC, 11/1/2018]
11.3.300.303 TIMELY RESPONSE TO REQUEST FOR INFORMATION:
A. Any response to
a request for additional information from the department must be received by
the department within 10 calendar days from the date transmitted.
B. The 10 calendar
day period shall begin to run on the first day after the date the request was
transmitted to the claimant or to the employer. If the tenth calendar day falls
on a date when the department offices are closed, receipt on the first business
day thereafter shall be timely. If a
response is not received timely, the department will make a determination based
on the information available at that time.
C. Employers and
third party administrators must respond to request for additional information
electronically.
[11.3.300.303
NMAC – Rp, 11.3.300.303 NMAC, 11/1/2018]
11.3.300.304 LATE FILING OF CONTINUED CLAIMS:
A. If the
department finds good cause for a claimant's failure to timely file a continued
claim, the claimant may file a late continued claim provided the certification
is filed not later than the thirteenth day following the last day of the week
requiring the certification.
B. A certification
not processed due to a department request for additional information from the
claimant shall be considered timely if the requested information is received by
the department no later than 10 calendar days after the request for additional
information is transmitted to the claimant.
[11.3.300.304
NMAC – Rp, 11.3.300.304 NMAC, 11/1/2018]
11.3.300.305 ALTERNATE BASE PERIOD:
A. Application of
alternate base period: If a claimant is
determined ineligible because the claimant does not have sufficient wages
during the base period to qualify for benefits and is not eligible for a
regular claim in any other state or a combination of states and the claimant's
work history reflects that the claimant may qualify using the alternate base
period, the department will utilize the “alternate base period” to determine if
the claimant is eligible for benefits.
If the department applies the “alternate base period” and the wages for
the most recent quarter have not yet been reported by the employer or processed
by the department, the claimant will be required to provide proof of wages
consisting of payroll checks (“check stubs)”, W-2s or an appropriate affidavit. If the employer's reported wages are
available for the most recent quarter, proof is not required from the
claimant. On its own initiative and
within its own discretion, if and when the department receives new or
additional information regarding wages, it may initiate a reconsideration of
the regular base period.
B. Effect of
election: Wages that fall within the
regular base period or the alternate base period established pursuant to
11.3.300.305 NMAC are not available for reuse in qualifying for a subsequent
benefit year.
C. Procedure:
(1) Upon
receipt of the claimant's documentary evidence of wages within the timeframe
required, wages will be processed by the department and used on the claim.
(2) Upon
processing of the most recent quarter's wages, a “notice of initial determination
of benefits” will be issued utilizing the wage information provided by the
claimant for the alternate base period.
(3) If
the claimant fails to provide documentary evidence of wages within the
timeframe required, the original “notice of initial determination of benefits”
will become final.
(4) Employers
will be notified of the wages used for the alternate base period on the notice
to employer of claim determination, which may include wages based upon proof
provided by the claimant. The employer will have 10 calendar days from date of
transmission of determination to provide the actual wages or to object to the
wages being used on the claim, and may also protest charges based upon the
reason for separation pursuant to Subsections A and C of 11.3.500.8 NMAC.
[11.3.300.305
NMAC – Rp, 11.3.300.305 NMAC, 11/1/2018]
11.3.300.306 RESERVED
[11.3.300.306
NMAC – Repealed, 11.3.300.306 NMAC, 11/1/2018]
11.3.300.307 RESERVED
[11.3.300.307
NMAC – Repealed, 11.3.300.307 NMAC, 11/1/2018]
11.3.300.308 CLAIM DETERMINATION:
A. NOTICE TO
EMPLOYER OF FILING OF CLAIM: Whenever a claimant files an initial
claim for benefits or an additional claim, the department shall immediately
transmit to the claimant’s last known employer, at the address of the employer
as registered with the department, if so registered, and, if not registered, to
the address provided by the claimant, a dated notice of the filing of the claim
and a fact-finding questionnaire. The employer shall provide the
department with full and complete information in response to the inquiry. The
employer shall transmit a response directly to the department within 10
calendar days from the date the notice of claim is sent. Unless excused by the department, the
response must be an electronic transmittal.
B. REQUEST FOR
ADDITIONAL INFORMATION: Prior to
issuance of a determination the department may request additional information
from the employer, the claimant or witnesses relative to the separation of the
claimant from employment.
C. INITIAL
DETERMINATION: A determination on any
claim for unemployment benefits shall be transmitted only after the department
has evaluated the claim.
(1) When
a non-monetary issue is not raised in an application for benefits and the
employer's response is not received by the department within 10 calendar days
after the transmission of the notice of claim, a determination shall be made
based upon the information on the application.
(2) The
10 day period shall begin to run on the day after the notice of claim was
transmitted to the employer as indicated on the application. If the tenth
calendar day falls on the weekend or on a holiday, the reply shall be timely if
received by the department on the following business day.
(3) After
the 10 day period has passed, the department shall immediately transmit to the
parties the determination including the reason, and shall advise the parties of
the right to appeal that determination pursuant to these rules.
(4) If
the claimant is subsequently disqualified from the receipt of benefits
resulting in an overpayment, the employer will remain liable for any benefit
charges incurred to the date of disqualification if the employer or an agent of
the employer demonstrates an established pattern of failing to respond timely or adequately to the
notice of claim within the ten-day period.
In no employer shall be liable for more than ten weeks’ worth of
benefits charges pursuant to 11.3.300.308 NMAC as a penalty for its failure to
respond to the claim in a timely manner.
(a) A pattern is
defined as failure to respond timely or adequately to five claims, or more at
the secretary’s discretion, within a calendar year.
(b) An inadequate
response is defined as the employer’s failure to provide relevant information
or documentation that was reasonably available at the time a response was
requested by the department.
(5) An
employer may appeal a determination within 15 days of the assessment of the
penalty that the employer or agent of the employer failed to respond timely or
adequately to the notice of claim. Upon
a finding on appeal that the employer or an agent of the employer had good
cause for failure to transmit a timely or adequate response, the employer will
be relieved of such charges. Overturned determinations
will not be factored into the analysis of whether a pattern exists.
D. REDETERMINATION: A redetermination may be issued only if all
the following criteria are met:
(1) The
department perceives the need for reconsideration as a result of a protest by
an interested party due to new or additional information received. Examples of
the type of errors which may prompt a redetermination are misapplication or
misinterpretation of the law, mathematical miscalculation, an additional fact
not available to the department at the time of the determination excluding
those facts the employer and claimant had the opportunity to provide prior to
the initial determination, transmitting a notice to the wrong employer or
address, an employer’s timely response statement disputing a claim for benefits,
or other administrative error.
(2) All
evidence and records are re-examined.
(3) A
written redetermination notice is issued to the claimant and any other
interested party, and is documented in the department records.
(4) A
redetermination can be issued no later than 45 calendar days from the original
determination date or 45 days from the date of the first payment derived from
the original determination, whichever event occurs latest.
(5) The
department may issue a redetermination provided that the employer’s statement
was received within the statutory time limits and within less than 45 calendar
days from the date of the first payment.
(6) If
the claimant began collecting benefits and as a result of redetermination will
be denied benefits, the claimant shall be advised.
E. STOPPING PAYMENT
DUE TO ADMINISTRATIVE ERROR: Once an
initial determination is made and payment of benefits is begun, payments shall
not be stopped without prior notice and an opportunity to be heard pursuant to 11.3.500.9
NMAC. When payments are made as a result
of administrative error by the department and are clearly not authorized by
law, rule, regulation, or any determination made pursuant to Subsection C of 11.3.300.308
NMAC, such payment shall not be deemed to have been made pursuant to a
determination of eligibility.
F. EMPLOYER'S
NOTICE OF A LABOR DISPUTE: When there is
a strike, lock-out or other labor dispute, the employer shall file with the
department after the commencement of such activity, and upon the demand of the
department, a report of the existence and nature of the labor dispute, and the
number of persons affected; and shall promptly provide the names, social
security numbers and work classifications of all individuals unemployed due to
the labor dispute, and whether and in what manner each individual is
participating in the dispute or has a direct interest in the outcome.
G. TERMINATION OF
CONTINUED CLAIMS: Payment of continued
benefits to any person who has been determined eligible to receive benefits on
an initial claim in accordance with 11.3.300.308 NMAC shall not thereafter be
terminated without notice and an opportunity to respond.
[11.3.300.308
NMAC – Rp, 11.3.300.308 NMAC, 11/1/2018]
11.3.300.309 BENEFITS FOR PARTIAL UNEMPLOYMENT:
A. PARTIALLY
UNEMPLOYED CLAIMANTS: Claimants are
partially unemployed in any week in which their usual full-time employment is
reduced to less than the normal full-time hours customarily scheduled and
prevailing in the establishment in which they are employed, and their wages
fall below their weekly benefit amount, due to the employer having less than
full-time work for them. For partially unemployed claimants whose
wages are paid on a weekly basis, a week of partial unemployment shall consist of
their pay period week, a calendar week or some other period designated by the
department.
B. NOTICE OF
REDUCED EMPLOYMENT: On the next payday
after any week for which an employee's work has been reduced by the employer to
less than 32 hours, their employer shall notify them that they may file a claim
by contacting the department for a week of partial unemployment. If the employer fails to notify the employees
of their rights under the law regarding reduced employment, the employees may
file for benefits at any time. Once the employees
have received notice from the employer, they may be denied benefits if they
have earned five times the weekly benefit amount after notification.
C. EMPLOYER RECORDS IN CONNECTION WITH PARTIAL
UNEMPLOYMENT: In addition to the
requirements set forth in 11.3.400.401 NMAC, all employers shall keep their
payroll records in such form that it would be possible from an inspection
thereof to determine which employees may be eligible for partial benefits to
include:
(1) wages earned by weeks as described in Subsection A of
11.3.300.309 NMAC;
(2) whether any week was in fact a week of less than full-time
work; and
(3) time lost, if any, by workers due to their unavailability
for work.
[11.3.300.309
NMAC – Rp, 11.3.300.309 NMAC, 11/1/2018]
11.3.300.310 INTERSTATE CLAIMS:
A. REGISTRATION FOR
WORK:
(1) Each
interstate claimant shall be registered for work, through any public employment
office in the agent state when and as required by the law, regulations, rules,
policies and procedures of the agent state.
The registration shall be accepted as meeting the registration
requirements of the liable state.
(2) Each
agent state shall report to the liable state whether each interstate claimant
meets the registration requirements of the agent state.
B. BENEFIT RIGHTS
OF INTERSTATE CLAIMANTS:
(1) If
a claimant files a claim against any state, and it is determined by such state
that the claimant has available benefit credits in such state, then claims
shall be filed only against such state as long as benefit credits are available
in that state. Thereafter, the claimant may file claims against any other state
in which the claimant has available benefit credits.
(2) For
purposes of this rule, benefit credits shall be deemed to be unavailable
whenever benefits have been exhausted, terminated, or postponed for an
indefinite period or for the entire period in which benefits would otherwise be
payable, or whenever benefits are affected by the application of a seasonal
restriction.
C. CONTINUED CLAIMS
FOR BENEFITS:
(1) Any
claim for benefits or for waiting-period credit shall be filed by an interstate
claimant in accordance with uniform procedures developed pursuant to the
interstate benefit payment plan. The claim shall be filed in accordance with
the type of week in use in the agent state. Any adjustments required to fit the
type of week used by the liable state shall be made by the liable state on the
basis of consecutive claims filed.
(2) The
claim shall be filed in accordance with the agent state's rules or regulations
for intrastate claims.
(a) With
respect to claims for weeks of unemployment in which claimants are not working for
their regular employers, the liable state shall, under circumstances which it
considers good cause, accept a continued claim filed up to one week or one
reporting period late. If a claimant files more than two weeks late, an initial
interstate claim must be used to begin a claim series, and no continued claim
for a past period shall be accepted.
(b) With
respect to weeks of unemployment during which claimants are attached to their
regular employers, the liable state shall accept any claim which is filed
within the time limit applicable to such claims under the law of the agent
state.
D. DETERMINATIONS OF CLAIMS:
(1) The
agent state shall, in connection with each claim filed by an interstate
claimant, ascertain and report to the liable state such facts relating to the
claimant's availability for work and eligibility for benefits as are readily
determinable in and by the agent state.
(2) The
agent state's responsibility and authority in connection with the determination
of interstate claims shall be limited to investigation and reporting of
relevant facts. The agent state shall not refuse to take an interstate claim.
E. APPELLATE
PROCEDURES:
(1) The agent state shall afford all
reasonable cooperation in the taking of evidence and the holding of hearings in
connection with appealed interstate benefit claims.
(2) With
respect to the time limits imposed by the law of a liable state other than New
Mexico, upon the filing of an appeal in connection with a disputed benefit
claim, whether or not the appeal is timely shall be determined by the liable
state by reference to that state's law, regulations, rules, policies and
procedures. In interstate appeals in
which New Mexico is the liable state, whether or not the appeal is timely shall
be determined by reference to relevant provisions of the New Mexico
Unemployment Compensation Act and NMAC 11.3.500.8.
F. EXTENSION OF
INTERSTATE BENEFIT PAYMENTS TO INCLUDE CLAIMS TAKEN IN AND FOR CANADA: This rule shall apply to claims taken in and
for Canada.
[11.3.300.310
NMAC – Rp, 11.3.300.310 NMAC, 11/1/2018]
11.3.300.311 COMBINED-WAGE CLAIMS: All combined-wage claims shall be subject to
the provisions of the interstate arrangement for combining employment and
wages, the interstate benefit payment plan, the regulations and guidelines
prescribed by the United States secretary of labor, and the applicable
provisions of the Unemployment Compensation Law and department regulations
which apply to claims for and payment of regular unemployment compensation.
A. FILING OF
CLAIMS:
(1) An
unemployed claimant who has covered employment and wages in more than one state
has the right to combine such wages and employment in the base period of one
state if the combination will provide benefits for which the claimant could not
otherwise qualify or will increase the benefits for which the claimant
qualifies in a single state. The claimant must file a combined-wage claim if
the claimant is eligible to do so rather than claim extended benefits. If the claimant wishes, the claimant has the
right to reject a combined-wage and file against a state in which the claimant
is separately eligible or to cancel the combined-wage claim and file no claim.
(2) Restrictions
on combined-wage claims:
(a) any unemployed claimant who has covered employment in New
Mexico and in another state may file a combined-wage claim unless:
(i) the claimant has established a valid claim under any other
state;
(ii) the benefit year has not ended; and
(iii) there
are still unused benefit rights; a claimant will not be considered to have
unused benefit rights on a prior claim if all benefits have been exhausted or
benefits have been denied by a seasonal restriction or benefits have been
postponed for an indefinite period or for the remainder of the benefit year;
(b) if a claimant files a combined-wage claim, all wages and
employment in all states in which the claimant worked during the base period of
the paying state must be included except employment and wages which are not
transferable under the provisions of Subsection C of 11.3.300.311 NMAC.
B. RESPONSIBILITIES OF NEW MEXICO WHEN TRANSFERRING
WAGES:
(1) Wages
earned in New Mexico in covered employment during the base period of the
combined wage claim filed by a claimant will be promptly transferred to the
paying state.
(2) Wages
earned in New Mexico will not be transferred if the employment and wages have
been:
(a) transferred to another paying state
and have not been returned unused, or which have been previously used by New
Mexico as the basis for a monetary determination which establishes a benefit
year, or
(b) cancelled
or are otherwise unavailable to the claimant as a result of a monetary
determination by New Mexico prior to its receipt of the request for transfer,
if such determination has become final or is the subject of a pending appeal;
if the appeal is finally decided in favor of the combined-wage claimant, any
employment and wages deemed eligible for use as wages in establishing monetary
eligibility will be transferred to the paying state.
C. NON-MONETARY ELIGIBILITY DETERMINATION: When a combined-wage claim is filed, the law
and eligibility requirements of the paying state apply even if an issue has
been previously adjudicated by a transferring state.
D. CONDITIONS
FOR WITHDRAWAL OF A COMBINED WAGE CLAIM: A combined-wage claimant may withdraw the
combined-wage claim any time before the monetary determination of the paying
state becomes final, provided that the combined-wage claimant:
(1) repays in full any benefits paid to the claimant; or
(2) authorizes the state against which the claimant will claim
benefits to withhold and forward to the former paying state a full repayment of
benefits.
E. RECOVERY OF PRIOR OVERPAYMENTS: If there is an
overpayment outstanding in the transferring state, including New Mexico, and
such transferring state so requests, the overpayment shall be deducted from any
benefits the paying state would otherwise pay to the combined-wage claimant on
the combined-wage claim except to the extent prohibited by the law of the
paying state. The paying state shall transmit the amount deducted to the
transferring state or credit the transferring state's required reimbursement
under the arrangement. This paragraph shall apply to overpayments only if the
transferring state certifies to the paying state that the determination of
overpayment was made within three years before the combined-wage claim was
filed and that repayment is legally required and enforceable against the
combined-wage claimant under the law of the transferring state.
F. NOTIFICATION AND APPEALS:
(1) A
combined-wage claimant will receive a monetary determination notice from the
paying state once the wage information from all states is received. The
claimant has the right to appeal any aspect of the monetary determination. The
appeal may be against either the paying state or the transferring state
depending upon which agency issued the determination which the combined-wage
claimant considers adverse to the claimant’s interest. If the transferring
state refused to transfer wages because the wage credits were cancelled under a
disqualification or because the work was not covered, the combined-wage
claimant will be sent an appealable determination by the transferring state.
(2) Except
as provided in this rule, when the claimant files a combined-wage claim in the
paying state, any protest or appeal shall be in accordance with the law of such
state.
(a) Where
the combined-wage claimant files a combined-wage claim in a state other than
the paying state or under the circumstances described in this rule, any protest
or appeal shall be in accordance with the interstate benefit payment plan.
(b) To
the extent that any protest or appeal involves a dispute as to the coverage of
the employing unit or services in the transferring state or otherwise involves
the amount of wages subject to transfer, the protest or appeal shall be decided
by the transferring state in accordance with its law.
[11.3.300.311
NMAC – Rp, 11.3.300.311 NMAC, 11/1/2018]
11.3.300.312 EXTENDED BENEFIT CLAIMS AND PAYMENT:
A. APPLICATION OF
OTHER RULES: The pertinent provisions of
the law and rules that apply to regular claimants apply also to claimants for
extended claims insofar as such rules pertaining to regular claimants are not
inconsistent with the provisions of this rule.
B. FILING CLAIMS: Unless otherwise prescribed, a claimant who
has received all of the regular benefits that were available to the claimant
under the Unemployment Compensation Law or any other state law and is an “exhaustee” as defined in Subsection H of Section 51-1-48 NMSA
1978, may apply for extended benefits by filing an extended benefits claim via
internet or by contacting the department.
The claim shall become effective as of the Sunday of the week in which
filed, provided that the claim may be back-dated to the Sunday of the week immediately
following the week which exhausted benefit eligibility if the failure to file
is determined to be with good cause.
C. CLAIM
DETERMINATION AND NOTICE: Upon receipt
of a claim for extended benefits the department will issue a determination on the
eligibility for extended benefits and transmit a notice thereof to the
claimant. The determination may be
appealed in the manner prescribed for regular benefit determination appeals.
D. CONTINUED CLAIMS:
Any claimant, in order to claim weekly-extended benefits, shall file the
continued claim as directed by the department.
E. RELIEF FROM
CERTAIN ELIGIBILITY REQUIREMENTS: A
claimant who claims extended benefits will not be required to:
(1) be unemployed for a waiting-period of one week; or
(2) perform services in employment as designated in Subsection B
of Section 51-1-5 NMSA 1978, before extended benefits are paid.
F. REQUIREMENT FOR
ADDITIONAL INITIAL CLAIMS: A claimant whose benefit year expires
within an extended benefit period must file an initial claim for regular
benefits at the end of that current benefit year and, if a new benefit year is
not established, at the beginning of each calendar quarter during the period to
determine if the claimant has sufficient wage credits in covered employment to
establish a new regular claim.
[11.3.300.312
NMAC – Rp, 11.3.300.312 NMAC, 11/1/2018]
11.3.300.313 “WEEK” DEFINED:
A. WEEK OF
UNEMPLOYMENT: Weeks of unemployment and
claims shall be on a calendar week basis, except as prescribed in the case of
partial unemployment, or as the department may direct otherwise in any case
where it appears some other “week” may better secure the full payment of benefits
when due.
B. CONDITIONS FOR
ESTABLISHMENT: The calendar week within
which the claimant becomes unemployed and in which the claimant earns less than
the claimant’s weekly benefit amount shall be credited as a week of
unemployment.
C. “WEEK” IN MORE
THAN ONE BENEFIT YEAR: A week of
unemployment shall be deemed to be within that benefit year which includes the
greater part of such week.
D. WEEK OF
DISQUALIFICATION: With respect to acts
and periods of disqualification under Section 51-1-7 NMSA 1978, which occur or
commence before the start of any week of unemployment as defined in
11.3.300.313 NMAC and Subsection A of 11.3.300.309 NMAC, “week” means the
calendar week in which the disqualifying act or event occurs.
[11.3.300.313
NMAC – Rp, 11.3.300.313 NMAC, 11/1/2018]
11.3.300.314 FRAUDULENT CLAIMS:
A. Claimant Fraud:
(1) Subsection
F of Section 51-1-38 NMSA 1978 of the Unemployment Compensation Law
provides: “Notwithstanding any other
provision of the Unemployment Compensation Law, including the provisions of
Subsection J of Section 51-1-8 NMSA 1978, if any individual claiming benefits
or waiting period credits shall, in connection with such claim, make any false
statement or representation, in writing or otherwise, knowing it to be false or
shall knowingly fail to disclose any material fact in order to obtain or
increase the amount of a benefit payment, such claim shall not constitute a
valid claim for benefits in any amount or for waiting period credits but shall
be void and of no effect for all purposes. The entire amount of the benefits
obtained by means of such claim shall be, in addition to any other penalties
provided herein, subject to recoupment by deduction from the claimant’s future
benefits or they may be recovered as provided for the collection of past due
contributions in Subsection B of Section 51-1-36 NMSA 1978.” The terms used in Section 51-1-38 NMSA 1978 mean:
(a) “False”
means a statement contrary to fact.
(b) “Knowingly”
means the person making the statement, at the time it was made, knew the
statement to be false or should have known it to be false because the person
had no reasonable basis for believing it to be true.
(c) “Knowingly
fails to disclose any material fact” means the claimant deliberately withholds
information which the claimant knows should be disclosed to the department.
(d) “Material
fact” means the fact affects the eventual outcome of a transaction. A fact which, if known, would result in a
determination adverse to the claimant is a material fact. A fact is not material if the failure to
disclose it or the intentional misstatement of it would not cause injury. A fact which, if known, would not cause a
denial or reduction of benefits or disqualification from receipt of benefits is
not a material fact.
(e) “With intent to
obtain benefits” means the claimant intended the statement to assist the
claimant to obtain benefits. In the
absence of facts to indicate otherwise, when concealment of a material fact by
willful misstatement or nondisclosure occurs in connection with a claim for
benefits, it is assumed that the claimant's intent was to obtain or increase
the amount of a benefit payment. When
facts are established which indicate a different intent, the conclusions as to
the claimant's intent shall be based on consideration of all the facts and not
merely an assumption.
(2) Claimants
who inadvertently make a mistake or omission on the basis of information
previously given them by the department, cannot
reasonably be expected to understand their responsibility and shall not be
subject to the provisions of Subsection D of Section 51-1-38 NMSA 1978.
(3) The
department shall impose an administrative penalty pursuant to Subsection A of Section 51-1-38 NMSA 1978 for each week that a claimant
knowingly makes a false statement or representation or knowingly fails to
disclose a material fact to obtain or increase the amount of a benefit
payment. Administrative penalties shall be
imposed as follows:
(a) for
each week of unreported or underreported earnings, the claimant shall forfeit
all benefit rights for a period of four weeks, up to a maximum of 52 weeks;
from the date of the determination or the date the claimant is next determined eligible
for benefits;
(b) for
each false statement on separation, eligibility, refusal of work and other
issues, the claimant shall forfeit all benefit rights for a period of four
weeks, up to a maximum of 52 weeks; from the date of the determination or the
date the claimant is next determined eligible for benefits; and
(c) In
any case where a claimant fraudulently obtained or increased benefits in two or
more separate offenses, the claimant shall forfeit all benefit rights for 52
weeks from the date of the determination or the date the claimant is next
determined to be eligible for benefits.
(4) The
department shall demand immediate repayment of any overpayment established
pursuant to Subsection D of Section 51-1-38 NMSA 1978. A warrant of levy and
lien shall be filed in all cases where the overpayment is not repaid
immediately. Recovery of the overpayment may be by any means permitted by
law. Recovery of fraudulent overpayments
may include court awarded costs. The
court costs awarded by the court shall be added to the overpayment and shall be
collected in the same manner as the underlying overpayment.
(5) Restitution
of an amount overpaid to a claimant due to fraudulent misrepresentation or
failure to disclose a material fact shall not preclude the department from
requesting criminal proceedings against such claimant.
(6) The
department shall impose a civil penalty pursuant to Subsection B of Section
51-1-38 NMSA 1978 upon every claimant who knowingly makes a false statement or
representation or knowingly fails to disclose a material fact to obtain or
increase the amount of a benefit payment.
The total amount of the penalty shall be twenty-five percent of the
amount of benefits overpaid as a result of the claimant’s false statement or
representation or knowing failure to disclose a material fact. The department shall apply the penalty as
follows:
(a) an amount equal to the first fifteen percent of the amount
of benefits overpaid as a result of the claimant’s false statement or
representation or knowing failure to disclose a material fact shall be
deposited in the “unemployment compensation fund” set forth in Section 51-1-19 NMSA
1978.
(b) an amount equal to the remaining ten percent of the amount
of benefits overpaid as a result of the claimant’s false statement or
representation or knowing failure to disclose a material fact shall be
deposited in the Employment Security Department Fund.
(7) Any
payments received from a claimant for repayment for any overpayment and civil
penalty shall be applied first to the principal amount of the overpayment and
any payment in excess of the principal amount of the overpayment shall be
applied to pay the civil penalty.
B. Employer Fraud:
(1) Subsection
D of Section 51-1-38 NMSA 1978 provides: “In addition to the penalty pursuant
to subsection C of this section, any employing unit or officer or agent of an
employing unit that makes a false statement or representation knowing it to be
false or that knowingly fails to disclose a material fact to prevent or reduce
the payment of benefits to any claimant eligible for benefits under the
Unemployment Compensation Law shall be required to pay a civil penalty in an
amount not to exceed $10,000 as determined by rule established by the
department. The penalty shall be
collected in a manner provided in Subsection B of Section 51-1-36 NMSA 1978 and
distributed to the fund.”
(2) When
imposing a civil penalty upon employers found to have made a false statement or
representation knowing it to be false or to have knowingly failed to disclose a
material fact to prevent or reduce the payment of benefits to any claimant eligible
for benefits under the Unemployment Compensation Law, the department shall
adhere to the following guidelines:
(a) an initial violation shall subject the employer to a maximum
penalty of $500.00;
(b) a second violation within a period of three years of the
previous violation shall subject the employer to a penalty that is no less than
$500.00 and no more than $1,000.00;
(c) a third violation within a period of three years of the most
recent violation shall subject the employer to a penalty that is no less than
$1,000.00 and no more than $2,000.00;
(d) a fourth or subsequent violation within a period of three
years of the most recent violation shall subject the employer to a penalty that
is no less than $2,000.00 and no more than $10,000.00.
(3) The
department shall demand immediate repayment of any civil penalty established
pursuant to Subsection D of Section 51-1-38 NMSA 1978. A warrant of levy and lien shall be filed in
all cases where the civil penalty is not repaid immediately. Recovery of the civil penalty may be by any
means permitted by law. Recovery of the
civil penalty may include court awarded costs.
The court costs awarded by the court shall be added to the civil
penalty.
(4) Payment
of the civil penalty due to fraudulent misrepresentation or failure to disclose
a material fact by any employing unit or officer or agent of an employing unit
shall not preclude the department from requesting criminal proceedings against
such employing unit or officer or agent of an employing unit.
[11.3.300.314
NMAC – Rp, 11.3.300.314 NMAC, 11/1/2018]
11.3.300.315 RETIREMENT INCOME:
A. Each eligible
claimant who, pursuant to a pension or retirement plan financed in whole or in
part by a base-period employer of the claimant shall have the weekly benefit
amount reduced, but not below zero, by the prorated amount of the pension,
retirement pay, annuity or other similar periodic or lump-sum payment that
exceeds the percentage contributed to the plan by the eligible claimant. The maximum benefit amount payable shall also
be reduced to an amount not more than 26 times the reduced weekly benefit amount. For purposes of this section periodic
retirement income is not deemed “received”, if , under the time period allowed
by the Internal Revenue Code, 26 U.S.C. Section 3405 and related provisions,
that amount is placed in a non-taxable qualifying retirement account.
B. A claimant’s,
monthly pension or retirement payment shall be multiplied by 12, then divided
by 52 to determine the amount of pension or retirement income attributed to a
week.
C. A lump-sum
pension or retirement payment shall be considered a periodic payment and the
amount divided by 52 and allocated on a weekly basis beginning with the last
week worked prior to separation from employment.
[11.3.300.315
NMAC – Rp, 11.3.300.315 NMAC, 11/1/2018]
11.3.300.316 DETERMINATION OF ELIGIBILITY OF
FULL-TIME STUDENTS:
A. Except for
students in approved training in accordance with Subsection E of Section 51-1-5
NMSA 1978 and 11.3.100.103 NMAC, the availability of benefits for full-time
students shall be determined in accordance with the provisions of Subsection E
of Section 51-1-5 NMSA 1978 and 11.3.300.316 NMAC.
B. The general
requirement: Any claimants enrolled in
an educational or training institution or program in a course of study who are
able to work and are available for work and are actively seeking
permanent full-time work or part-time work in accordance with Subsection I of Section
51-1-42 NMSA 1978, will not be denied from receiving benefits or waiting period
credit.
C. Any claimants
enrolled in an educational or training institution or program who can
demonstrate by credible evidence that they are unequivocally attached to the
labor force and available for full-time or part time permanent work for which
they are presently qualified without regard to the hours spent in attending
classes or doing homework will not be subject to denial if all of the following
requirements are met:
(1) While
working full-time or part-time and attending school, they became unemployed for
reasons not attributable to the schooling and the hours of school attendance
have not changed substantially since becoming unemployed, or they began
attending school after becoming unemployed and no rearrangement of their school
hours would be required to accommodate their normal and customary working
hours.
(2) For
school terms commencing after the filing of the unemployment claim, the
claimants are required to submit to the department a completed student
questionnaire, a schedule of classes and, if required by the department, an
authorization of release of school records prior to the commencement of each
school term. For school terms commencing
prior to the filing of the unemployment claim, a student questionnaire and
schedule of classes may be verified by the department prior to issuance of a determination
that the claimants are available for full-time or part-time permanent work for
the school term covered on the student questionnaire notwithstanding their
status as full- students.
(3) Full
time school is defined as 12 or more credit hours during a regular school term;
six or more credit hours for summer term or graduate school or as defined by
the school or training institution.
D. A determination
of eligibility made in accordance with Subsection C of 11.3.300.316 NMAC shall
apply only to the semester or period covered on the student questionnaire.
E. A claimant who
receives a determination pursuant to Subsection C of 11.3.300.316 NMAC shall
promptly transmit to the department any changes to class schedule during the
school term. If the claimant adds or changes any classes, the claimant’s
eligibility shall be subject to redetermination pursuant to Subsection C of 11.3.300.316
NMAC and Subsection A of 11.3.300.308 NMAC.
[11.3.300.316
NMAC – Rp, 11.3.300.316 NMAC, 11/1/2018]
11.3.300.317 POST EMPLOYMENT PAYMENTS:
A. The following payments
made to a claimant are considered wages that must be reported by the claimant
at the time they are earned and which are deductible from any benefits
otherwise payable to the claimant for the week or weeks covered by such
payments:
(1) Wages
in lieu of notice, meaning wages paid by an employer to an employee upon
separation in lieu of providing a definite period of notice per a written
employer contract, a clearly defined, uniformly applied, written employer
policy in place prior to the date of separation, or a statutory requirement;
(2) Bonuses,
including commissions, incentive pay, ratification lump sum payments (such as
union layoff bonuses), retention or “stay” bonuses, and transfer or relocation
bonuses;
(3) Supplemental
unemployment payments whose premiums are paid by the employer;
(4) Vacation
or leave pay, bereavement pay, continuation pay, or PTO payouts with a letter
of intent to return to work within four weeks of separation; or
(5) Back
pay
B. A claimant who
receives payments listed in Subsection A of this part cannot establish a
waiting period credit or receive benefits for the week or weeks covered by such
payments, if such payments equal or exceed the claimant’s weekly benefit
amount.
C. When a claimant
leaves work voluntarily without good cause connected with work, is discharged
for misconduct connected with work, or fails without good cause to apply for or
accept an offer of suitable work and receives a payment listed in Subsection A
of this part for services actually performed in any week for which benefits are
claimed, these payments cannot be used to meet the requirement of wages earned
during employment equal to or exceeding five times the weekly benefit amount of
the claim to restore eligibility following a disqualification from benefits or
filing a new claim under the provisions of Subsection A- C of Sections 51-1-7, NMSA
1978.
D. The following
payments are not considered wages and will not be deducted from any benefits
otherwise payable to a claimant:
(1) Severance
(2) Supplemental
unemployment payments whose premiums are paid by the claimant
(3) Vacation
or leave pay bereavement pay, continuation pay, or PTO payouts without a letter
of intent to return to work
(4) Residuals
[11.3.300.317
NMAC – Rp, 11.3.300.317 NMAC, 11/1/2018]
11.3.300.318 BENEFITS DUE DECEASED PERSONS:
A. If prior to the
claimant’s death, a claimant had filed a weekly certification, for benefits
which were unpaid at the time of the claimant’s death, the benefits shall be
paid to the deceased claimant's court-appointed executor, administrator or
personal representative. If the deceased
claimant's next of kin demonstrates, to the secretary's satisfaction, that the
court appointment of a fiduciary is impractical or legally unnecessary, then
the benefits shall be paid to the next of kin. The order of priority for such
payment shall be:
(1) one-half
to the surviving spouse, if residing with the deceased claimant at the time of
death, and one-half to the natural parent or physical custodian of any minor
children or any dependent disabled adult children of the deceased claimant (if
more than one, per capita by children and not per stirpes);
(2) if no minor children and no dependent disabled adult
children of the deceased claimant, all to the surviving spouse; if no surviving
spouse, all equally
(3) to the surviving adult children; if no surviving adult
children, all equally
(4) to the surviving parents; if no surviving parents, all
equally
(5) to the surviving siblings; if no surviving siblings, all
(6) to
the deceased claimant's heirs at law as provided in the New Mexico Probate
Code, Sections 45-2-101 through 45-2-114 NMSA 1978.
B. Whenever there
is more than one legal heir in any of the above classes, payment may be made to
any one of such group as agent for the others upon submission of proper
evidence of authority and identification.
C. Application for
payment of benefits must be made in writing and on the prescribed form within
six months of the death of the decedent and must be accompanied by a certified
copy of the death certificate. The application form shall set forth that the
individual died intestate, that no executor, administrator or personal
representative has been appointed to administer the deceased claimant's estate,
and the relationship of the person to the deceased. Any outstanding payments
representing benefits claimed must accompany the application for payment for
re-issuance.
D. Unless, within
the time prescribed herein a claim is made for benefits due a deceased claimant
by one of the parties herein authorized to make such claim, any payments issued
directly to the deceased claimant shall be canceled, and any additional benefit
payments due to the deceased claimant for weeks of unemployment prior to the
claimant’s death shall be canceled, and all sums represented by benefits
payable to the deceased claimant prior to the claimant’s death shall remain a
part of the unemployment compensation fund.
[11.3.300.318
NMAC – Rp, 11.3.300.318 NMAC, 11/1/2018]
11.3.300.319 STANDARDS FOR WAGES ELIGIBLE TO PURGE
BENEFIT DISQUALIFICATION; BONA FIDE EMPLOYMENT: In determining whether a claimant has earned
wages to requalify for benefits after imposition of a disqualification under
the provisions of Section 51-1-7 NMSA 1978, the following shall apply:
A. Wages required
to requalify will include both covered and non-covered wages, but will not
include earnings from self-employment or earnings excluded under the provisions
of 11.3.300.317.NMAC.
B. The wages must
have been earned for work performed subsequent to the effective date of the
disqualification.
C. The proof
required to establish wages for requalification may consist of check stubs or
other payment records, employer statement or W-2 form if the W-2 establishes
that the wages were paid after the effective date of the disqualification. When employers' quarterly wage reports
available to the department show the contended wage items, the department may
accept the report as proof of wages. If
necessary for a determination under Subsection B of 11.3.300.319 NMAC, the
period during which the wages were earned shall be established by other proof.
D. Except for wages
of which the department has knowledge through employers' quarterly wage
reports, the burden of establishing requalifying wages shall rest on the
claimant. The department may, as it
deems appropriate, assist the claimant in the verification of wages which the
claimant states that the claimant has earned but of which the claimant has no
proof or insufficient proof, by contacting the employers.
E. The wages must
have been earned in “bona fide” employment.
The basic test to determine whether employment is “bona fide” to purge a
disqualification is whether the total facts lead a reasonable person to
conclude that the claimant was in good faith genuinely attached to the labor
market. A claimant is not engaged in
bona fide employment when the service is performed for the purpose of purging a
disqualification. No fixed rule can
govern when employment is “bona fide,” but the following factors shall be
considered by the department:
(1) whether a valid, arms-length employer-employee relationship
exists; this excludes self-employment and incidental cash payments for services
reportedly performed for relatives and friends;
(2) whether the work is of the type of which the claimant would
accept referral on a full-time basis or for repeated temporary durations;
(3) whether the work bears any relation to the claimant's main
occupational skills;
(4) whether the work is of the type that employers generally
offer in the job market;
(5) whether the work is related to the particular employer's
normal activity and customarily offered to the working public by this employer;
(6) whether the employer is registered for employment purposes
with appropriate taxing and licensing authorities;
(7) the nature of the work, concerning hours to be worked, where
the work is performed, and rate of pay;
(8) whether the employer can produce payroll records to
substantiate the amount of payment and appropriate tax withholding information;
(9) whether the wages for the employment were equivalent to the
claimant's wages in the claimant’s usual occupation or last preceding
employment; and
(10) the manner in which the work was obtained, and the nature
and extent of the claimant's search for work.
[11.3.300.319
NMAC – Rp, 11.3.300.319 NMAC, 11/1/2018]
11.3.300.320 WORK SEARCH REQUIREMENT:
A. WORK SEARCHES:
To qualify for continued benefits, a claimant must:
(1) be a member of a union with a hiring hall and meet the union
requirements for job referral or placement; a union with a hiring hall is one
that actively seeks to place its members in employment; or
(2) actively seek work by contacting a minimum number of
different employers each week during the week for which benefits are claimed,
as directed by department representatives.
It is not mandatory that the work searches occur on different days of
the week;
(a) a claimant may contact the same employer more than one time
during a given week, which may count for multiple searches if the claimant
applies for multiple jobs with the same employer so long as the applications
are distinct and separate positions ;
(b) a claimant may
list jobs applied for through the New Mexico department of workforce solutions
workforce connection centers, the New Mexico state personnel office (SPO),
America's job bank, Workforce Innovation and Opportunity Act (WIOA) partners
and similar programs as approved from time to time by the department as valid
work search contacts for each week of claim certification;
B. in order to
qualify for continued benefits, interstate, if New Mexico is the liable state,
claimants must seek work within the week for which benefits are being claimed
and actively seek work by contacting a minimum of two different employers each
week, or if a union member, actively seek work by contacting the union as
required by the union in order to be eligible for job referral or placement
C. claimants must
keep a record of the name, address and telephone number or electronic mail
address of each employer contacted in the event of an audit; this information
must be provided to department representatives upon request; the claimant must
provide the requested information no later than 10 calendar days from the date
of the department’s request; failure to provide the required information
without good cause may result in a denial of benefits for the week in question;
the claimant must provide adequate information to allow verification of the
contact; if the information provided is insufficient to verify a valid work
search occurred, benefits for the week in question will be denied; if a denial is imposed, the effective period
may include weeks for which the claimant has already been paid benefits; such
benefits would constitute an overpayment which would be recouped pursuant to
Section 51-1-38, NMSA 1978; any denial imposed for failure to provide the
required information may be appealed pursuant to 11.3.500.9 NMAC;
D. A claimant whose
work search is deemed inadequate or invalid shall be denied benefits for the
week in question. A rebuttable
presumption that the claimant failed to meet the active work-search
requirements for that week will be raised in all cases where a claimant’s work
search is deemed inadequate or invalid.
In order to overturn the denial of benefits the claimant shall provide
proof that the claimant did meet the active work-search requirements for that week. If a denial is imposed, the effective period
may include weeks for which the claimant has already been paid benefits. Such benefits would constitute an overpayment
which would be recouped pursuant to Section 51-1-38, NMSA 1978. Any denial imposed on the basis of an
inadequate or invalid work search may be appealed pursuant to 11.3.500.9 NMAC.
E. The department
may waive the work search requirements for claimants who the department
determines are on temporary lay-off status from their regular full-time
employment upon receipt of an assurance from the employer that the lay-off
shall not exceed four weeks or upon receipt of an express offer in writing of
substantially full-time work which will begin within a period not exceeding
four weeks. Such waivers shall apply only to the four-week period covered on
the determination. A claimant who
receives a determination granting a waiver for the four-week period shall
promptly transmit any change to the claimant’s recall date or start date to the
department. The claimant's eligibility
shall then be subject to redetermination pursuant to Subsection A of
11.3.300.308 NMAC.
[11.3.300.320
NMAC – Rp, 11.3.300.320 NMAC, 11/1/2018]
11.3.300.321 REEMPLOYMENT SERVICES: A claimant shall be eligible to receive
benefits with respect to any week only if the claimant participates in
reemployment services such as job search assistance services, if the claimant
has been determined to be likely to exhaust regular benefits, and needs
reemployment services pursuant to a profiling system established by the
department, unless the department determines that:
A. this claimant
has completed such services; or
B. there is
justifiable cause for the claimant's failure to participate in such services;
[11.3.300.321
NMAC – Rp, 11.3.300.321 NMAC, 11/1/2018]
11.3.300.322 CLAIM CANCELLATIONS:
A. A claim may be
canceled by the claimant at any time after an initial
or amended monetary determination even though final, provided that no
disqualifying determination has been issued nor any benefits paid on the
claim. Requests for cancellation must be
made by the claimant or their authorized representative in the manner
prescribed by the department and signed electronically or in writing by the
claimant or the authorized representative of the claimant.
B. A request to
change the date of a claim is deemed a request to cancel a claim and file a new
claim.
(1) Only
if the claimant does not qualify for benefits using the base period consisting
of the first four of the last five completed quarters will the base period be
changed.
(2) In
situations where claimants might be benefited by a delayed filing, the
department will advise the claimant that the claim determination will not show
any wages for the first quarter and that this is not an error. If using the new base period will cause an
increase in the weekly benefit amount, the department will make an effort to
advise the claimant of this option to file a claim at a future date.
C. Claimants who
are eligible to file a combined wage claim may cancel such claim when New
Mexico is the paying state if benefits have been paid on the combined wage
claim. Cancellation will be authorized
only if the claimant agrees in the manner prescribed by the department to
reimburse all benefits paid by cash or by authorizing any other state to deduct
the amount due from any benefit payments to which the claimant is eligible. Requests for cancellation must be made in the
manner prescribed by the department signed electronically or in writing by the
claimant or the authorized representative of the claimant.
[11.3.300.322
NMAC – Rp, 11.3.300.322 NMAC, 11/1/2018]
11.3.300.323 VOLUNTARY WITHHOLDING OF FEDERAL INCOME
TAX:
A. The department
shall provide each claimant filing a new claim for benefits with the following
information in documented form:
(1) benefits are
subject to federal, state and local income tax;
(2) requirements exist under federal law pertaining to estimated
tax payments;
(3) a
claimant may elect to have federal income tax deducted and withheld from the
claimant’s benefit payments at the amount specified in the federal Internal
Revenue Code, 26 U.S.C. Section 3402(p)(2); and
(4) a claimant is permitted to change a previously elected
withholding status one time during each benefit year.
B. Amounts deducted
and withheld from benefits shall remain in the unemployment compensation fund
until transferred to the internal revenue service as a payment of income tax.
C. The department
shall follow all procedures specified by the United States department of labor
and the internal revenue service pertaining to the deducting and withholding of
federal income tax.
D. Amounts shall be
deducted and withheld for the purpose of federal income tax payments only after
amounts are deducted and withheld for any overpayments of benefits, child
support obligations and food stamp over-issuances required to be deducted and
withheld under the Unemployment Compensation Law.
[11.3.300.323
NMAC – Rp, 11.3.300.323 NMAC, 11/1/2018]
11.3.300.324 COLLECTIONS:
A. Deferred
collections: From time to time, the department may, at its discretion determine
that is it not economically efficient to actively pursue collection of certain
overpayments due to the claimant's situation or the department's
resources. The department may cease or
forbear active collection activities for either finite period or an indefinite
period depending on the circumstances.
However, overpayment debts will remain on the department's books as an
obligation owed by the claimant to the department. The department's discretion in this matter is
final.
B. Money collected
by the department with respect to an overpayment or civil penalty will be
applied in the following order unless specifically directed otherwise:
(1) costs incurred by the department to pursue collection of the
overpayment or civil penalty;
(2) the principal amount of the overpayment;
(3) the
portion of the civil penalty equal to fifteen percent of the overpayment amount
which will be deposited in the Unemployment Compensation Fund set forth in
Section 51-1-19 NMSA 1978; and
(4) the portion of the civil penalty equal to ten percent of the
overpayment of the amount which will be deposited in the employment security
department fund created pursuant to Section 51-1-34 NMSA 1978.
[11.3.300.324
NMAC – Rp, 11.3.300.324 NMAC, 11/1/2018]
11.3.300.325 OVERPAYMENTS AND WAIVER OF OVERPAYMENTS
PURSUANT TO THE TRADE ACTS AND TEMPORARY EXTENDED UNEMPLOYMENT COMPENSATION
ACTS:
A. The department
shall use the process set forth herein to evaluate disputes of overpayments
paid under the Trade Acts, the Trade Adjustment Assistance (TAA), Trade
Readjustment Assistance (TRA) or the Emergency Unemployment Compensation (EUC)
Acts under the following circumstances:
(1) When
a decision of the department results in an overpayment, an appealable
determination will be sent to the claimant.
The claimant may file an appeal no later than 15 days from the date of
the determination in accordance with 11.3.500 NMAC.
(2) At the department’s discretion, a
request for review of an overpayment may be administratively initiated to
determine if a waiver of overpayment will be approved. A waiver will be approved if the department
determines that:
(a) the
application was made timely;
(b) payment was made without the fault of the claimant; and
(c) requiring repayment would be contrary to equity and good
conscience.
(3) The
department's affirmative finding of any one of the following factors of fault
precludes a waiver:
(a) that the claimant knowingly made a material
misrepresentation, which misrepresentation resulted in the overpayment; or
(b) that the claimant knowingly failed to disclose a material
fact, which failure to disclose resulted in the overpayment; or
(c) that the claimant knew or should have known that he was not eligible
for the payment; or
(d) that the department has previously issued a determination of
fraud in regards to the overpayment.
(4) The department shall consider the
following factors in determining whether, in equity and good conscience, the
department should require repayment:
(a) whether the overpayment was the result of a decision on
appeal;
(b) whether the claimant was given notice that repayment would
be required in the event of reversal on appeal;
(c) whether
the recovery of the overpayment would cause an extraordinary and lasting
financial hardship to the claimant, resulting in the claimant’s inability to
obtain minimal necessities of food, medicine and shelter for at least 30 days
and period of financial hardship lasting at least three months, and
(d) whether,
if recoupment from other benefits is proposed, the length of time of
extraordinary and lasting financial hardship shall be the longest potential
period of benefit eligibility as seen at the time of the request for waiver of
determination.
(5) In
determining whether fraud has occurred, the department shall consider the
following factors:
(a) whether the claimant
knowingly made, or cause another to make, a false statement or representation
of a material fact resulting in the overpayment;
(b) whether the claimant knowingly failed, or caused another to
fail, to disclose a material fact resulting in the overpayment.
B. If a
determination of fraud is made, the claimant shall be ineligible for any
further TAA, TRA or TEUC benefits and shall be ineligible for waiver of
any overpayment.
C. A finding that
the overpayment was not the result of a decision on appeal or that the recovery
would not cause extraordinary and lasting financial hardship shall preclude a
waiver.
D. If a claimant
fails, without good cause, to complete training, a job search or a relocation, any payment to such claimant that is not
properly and necessarily expended in attempting to complete the activity shall
constitute an overpayment. Such
overpayments shall be recovered or waived according to the standards of fault,
equity and good conscience contained in 11.3.300.325 NMAC.
E. In any event, no
repayment shall be required or deduction made until a notice and an opportunity
for fair hearing have been provided to the claimant in accordance with 11.3.500
NMAC, a determination has been issued by the department, and the determination has
become final.
[11.3.300.325
NMAC – Rp, 11.3.300.325 NMAC, 11/1/2018]
11.3.300.326 DOMESTIC ABUSE:
A. A claimant is
eligible for waiting period credit or benefits if the claimant voluntarily
leaves work due to circumstances directly resulting from domestic abuse.
(1) “Domestic
abuse” means abuse as defined in Section 40-13-2 NMSA 1978, and includes but is
not limited to any incident by a household member against another household
member resulting in: physical harm; severe emotional distress; bodily injury or
assault; a threat causing imminent fear of bodily injury by any household
member; criminal trespass; criminal damage to property; repeatedly driving by a
residence or work place; telephone harassment; stalking; harassment, or harm or
threatened harm to children.
(2) “Household
member” means a spouse, former spouse, family member, including relative,
parent, present or former stepparent, present or former in-law, child or
co-parent of a child, intimate partner or a person with whom the claimant has had
a continuing personal relationship.
Cohabitation is not necessary to be deemed a household member.
B. DOCUMENTATION: The claimant shall provide documentation
satisfactory to the department for the determination of whether the claimant
has experienced domestic abuse for purposes of unemployment insurance benefits.
The documentation shall be of a competent nature, reasonably susceptible to
verification and bearing indicia of credibility. The documentation shall include a sworn
statement by the claimant regarding the domestic abuse. The documentation may include information
from individuals or organizations from whom the claimant has sought assistance
for the domestic abuse, including but not limited to police or court records,
documentation from a shelter worker, attorney at law, a
member of the clergy, physician or other medical or mental health
practitioner. If upon review of the
claimant's documentation, the department determines that further verification
is warranted, the department may require additional supporting documentation.
C. DETERMINATION:
To be eligible for benefits as a result of domestic violence, the
department must determine that the claimant is monetarily eligible for
unemployment insurance compensation benefits.
The existence of domestic violence shall be established by a
preponderance of the evidence.
(1) Factors
to be considered in determining if claimant voluntarily leaves work as a result
of domestic violence include but are not limited to whether: claimant
reasonably fears domestic abuse at or en route to or
from claimant's place of employment; claimant reasonably is required to
relocate to another geographic area to avoid future domestic abuse; claimant
reasonably believes that leaving employment is necessary for the future safety
of the claimant or the claimant's family due to the domestic abuse; the abuse
itself interfered with claimant's ability to work, travel or prepare for work;
claimant reasonably left the labor market to escape such abuse; the abuse
occurred at claimant's place of employment; the abuser's relatives or friends
or the abuser were co-workers of claimant or otherwise present at the worksite;
claimant informed the employer and gave the employer the opportunity to
ameliorate the domestic abuse within a reasonable period of time, but the
employer would not or could not do so; claimant has filed a civil or criminal
proceeding against an alleged abuser; however nothing in this provision shall
be construed as requiring the filing of a civil or criminal proceeding as a
prerequisite to establishing the existence of domestic violence.
(2) Claimant
must indicate at the time of filing the claim that the reason for leaving
employment was as a result of qualifying domestic abuse.
(3) Claimant
must provide evidence tending to prove the existence of qualifying domestic
abuse within 10 days of the filing of the claim.
(4) Claimant
will be eligible to receive benefits retroactively to the date of filing if
adequate documentation is received within 10 days of the filing of the claim,
if otherwise eligible for benefits.
(5) If
no documentation is received within 10 days of the filing of the claim, an
initial determination will be issued denying the claim on the basis of domestic
abuse.
(6) If
claimant subsequently submits documentation tending to demonstrate the
existence of domestic abuse, a determination will be made on the basis of the
subsequent documentation submitted.
Claimant will not be eligible to receive benefits retroactively to the
date of filing but will be eligible to receive benefits retroactively to the
date of submission of the subsequent documentation supporting domestic abuse.
(7) Only
an alleged victim of domestic abuse may obtain benefits under this provision;
an alleged perpetrator may not.
D. If domestic
abuse is proven, a determination will be issued identifying domestic abuse as
the reason for the separation and a contributing employer's account will not be
charged any portion of benefits paid.
[11.3.300.326
NMAC – Rp, 11.3.300.326 NMAC, 11/1/2018]
11.3.300.327 DEPENDENTS' ALLOWANCE:
A. A claimant is eligible
to receive benefits in the amount of $25 for each unemancipated
child, up to a maximum of two children, and not to exceed fifty percent of the
claimant's weekly benefit amount.
B. The claimant
shall declare the dependents' allowance on the date that the claimant files an
initial claim for the benefit year.
C. Within 14 days
of an application for the dependents’ allowance, the claimant must supply
verification that, for each child for whom the allowance is claimed, the child
is the claimant's child, under the age of 18, unemancipated
and the child is:
(1) in fact dependent on and wholly or mainly supported by the
claimant; or
(2) in the legal custody of the claimant pending adjudication of
a petition for adoption filed in a court of competent jurisdiction; or
(3) the subject of a decree or order from a court of competent
jurisdiction requiring the claimant to contribute to the dependent's support;
and no other claimant is receiving dependents’ allowance benefits for that
child under the Unemployment Compensation Law.
D. Definitions:
“Child” means a person:
(1) who is related to the claimant within the third degree of
consanguinity; or
(2) who is a stepchild of the
claimant by virtue of the claimant's marriage to the child's biological or
legal parent and that biological or legal parent has sole or primary legal and
physical custody of the child and the child physically resides with the
claimant; or
(3) who
is in the claimant's legal or physical custody pursuant to a decree or order
from a court of competent jurisdiction including but not limited to orders of
custody, guardianship, conservatorship, trusteeship or foster care;
(4) “wholly or mainly supporting” means that the claimant who is
applying for the dependents' allowance is in fact furnishing contemporaneously
more than fifty percent of the actual
cost of support for the dependent.
E. The claimant has
the burden of establishing to the satisfaction of the department that the
claimant is actually furnishing more than one-half of the cost of support of
the child.
F. No fixed dollar
amount shall be used to make the determination regarding support.
(1) The
department considers “cost of support” to include but is not limited to a
reasonable proration of the expenses of shelter (including but not limited to
household grocery, toiletries, household cleaning products, rent or mortgage
payments, customary utilities such as water, sewer, gas, electricity and basic
telephone), school expenses of the child (including but not limited to tuition,
books, clothing and supplies for special school or educational activities),
medical and dental expenses including actual payments and payments of insurance premiums; payment of expenses
related to any special needs of the child.
(2) The
department may also use any child support worksheets utilized by a court of
competent jurisdiction in determining the amount of child support due from each
parent.
G. Verification:
(1) Claimant
shall not be eligible to claim a dependents' allowance for any person unless
the dependent has been issued a social security number or other federal
identification sufficient for purposes of verification.
(2) A
claimant who is otherwise eligible for benefits and who has not yet submitted
the required dependents' allowance verification shall not be paid the
dependents' allowance unless and until verification satisfactory to the
department is presented.
(3) Upon
receipt of verification within 14 days of the application the dependents'
allowance shall be paid retroactively to the date of the application.
(4) If
the claimant submits verification after 14 days, the claimant will not be eligible
to receive benefits retroactively to the date of the application but will be eligible
to receive benefits retroactively to the date of submission of verification
satisfactory to the department.
H. Changes in
eligibility:
(1) During
the life of the claim, should claimant become eligible for a dependents'
allowance, claimant may request from the department that the dependents'
allowance be granted. Claimant will be
required to provide proof that the dependent for which the benefit is being
sought was not a dependent at the time of the filing of the initial claim. The department will issue a written
determination whether claimant is granted or denied the dependents' allowance.
(2) During
the life of the claim, should claimant no longer be eligible to claim a
dependents' benefit for one or more of the dependents for whom claimant is
receiving the dependents' allowance, claimant is required to report to the
department within five days any such change in circumstances. A claimant who fails to report such change in
circumstances may be assessed an overpayment.
(3) Should
the circumstances of who provides support for the dependent change during the
life of the claim, the claimant shall inform the department within five days of
the change of circumstances.
I. Multiple
claims: Only one claimant may receive a dependents' allowance for any specific
dependent. In the event two claimants
each request to receive the dependents' allowance for the same child, upon
notification of the dispute, the department shall continue making payments to
the claimant who the department initially determined was eligible to receive
benefits for the dependent. A later claimant
may demonstrate a superior claim to the dependents' allowance for a child by
producing documentation showing that the later claimant has a paramount right
to claim the dependents' allowance, including but not limited to:
(1) a
custody decree or order from a court of competent jurisdiction finding that the
dependent child is or should be in the primary physical custody of the later
claimant or that the later claimant is obligated to provide more than fifty percent of
the dependent child's support and that the later claimant is in fact the
primary physical custodian of the dependent child or is in fact providing more
than fifty percent of the dependent child's support;
(2) a custody decree or order from a court of competent
jurisdiction or similar document including, but not limited to IRS form 8332,
finding that the later claimant is eligible to claim the child as a dependent
for official purposes.
J. Once a claimant
has been determined to be eligible for the dependents' allowance that
determination will remain in effect for the life of the claim, subject to the
provisions of Subsection H of 11.3.300.327 NMAC.
K. Payment of
regular benefits will not be delayed due to any delay in processing the
application for dependents’ allowance.
L. A contributing
employer's account will not be charged any portion of benefits paid for the
dependents' allowance.
[11.3.300.328
NMAC – Rp, 11.3.300.328 NMAC, 11/1/2018]
HISTORY OF
11.3.300 NMAC:
Pre-NMAC
History: The material in this part was derived from that previously filed with
the State Records Center and Archives under ESD 74-1, Unemployment Compensation
Law of New Mexico and Rules and Regulations of the Commission, filed 10-1-74;
Regulation 301, Filing Initial, Additional and Reopened Claims, amended and
filed 5-23-90; Regulation 303, Timely Response to Request for Information,
amended and filed 5-4-90; Regulation 304, Late Filing of Continued Claims,
amended and filed 5-4-90; Regulation 306, Claim Registration Form, amended and
filed 9-20-94; Regulation 308.1, Termination of Continued Claims, amended and
filed 11-5-87; Regulation 310, Interstate Claims, amended and filed 8-17-90;
Regulation 311, Combined Wage Claims, amended and filed 8-17-90; Regulation
314, Fraudulent Claims, amended and filed 10-16-90; Regulation 315, Retirement
Income, amended and filed 9-20-94; Regulation 316, Availability of Full-Time
Students, amended and filed 1-8-90; Regulation 317, Wages in Lieu of Notice, Backpay for Loss of Employment, or Vacation Pay and Benefit
Rights, amended and filed 9-20-94; Regulation 318, Benefits Due Deceased
Persons, amended and filed 5-4-90; Regulation 319, Standards for Wages Eligible
to Purge Benefit Disqualification; Bona Fide Employment, amended and filed
6-14-91; Regulation 320, Work Search Requirement, amended and filed 9-20-94;
Regulation 321, Reemployment Services, amended and filed 9-20-94; Regulation
322, Claim Cancellations, amended and filed 9-20-94.
History of
Repealed Material:
11.3.300
NMAC Labor and Workers Compensation, Employment Security, Claims
Administration, filed 1-1-2003 – Repealed effective November 1, 2018.