New
Mexico Register / Volume XXX, Issue 20 / October 29, 2019
This
is an amendment to 11.3.100 NMAC, Sections 1, 7, 102, 106, 107 and 109,
effective 10/29/2019.
11.3.100.1 ISSUING AGENCY:
New Mexico Department of Workforce Solutions, [Employment Security
Division], P.O. Box 1928, Albuquerque, NM 87103
[7-15-98;
11.3.100.1 NMAC - Rn & A, 11 NMAC 3.100.1, 01-01-2003; A, 11-15-2012, A, 10/29/2019]
11.3.100.7 DEFINITIONS:
In addition to the definitions found in the individual parts and sections,
the following definitions apply in Parts 100 through 500 of Title 11, Chapter
3:
[A. “Bureau”
means the unemployment insurance bureau of the employment security division of
the New Mexico department of workforce solutions.]
[B] A. “Claim” means a request for benefits
pursuant to the Unemployment Compensation Law.
[C] B. “Contribution” means the state unemployment
insurance tax imposed on employers pursuant to the Unemployment Compensation
Law.
[D] C. “Department” means the New Mexico
department of workforce solutions.
[E] D. “Division” means the unemployment
insurance division of the New Mexico department of workforce solutions,
formerly the employment security division [of the New Mexico department
of workforce solutions], formerly known as the employment security
commission and formerly known as the employment security department.
[F] E. “Electronic” means relating to technology
having electrical, digital, magnetic, wireless, telephonic, optical,
electromagnetic or similar capabilities.
[G] F. “Electronic form” means body of information
collected by electronic means, computer program or other automated means
similar to the body of information collected by a paper document.
[H] G. “E-mail” or “electronic mail” means
communications similar to paper letters and memos transmitted electronically
for the purpose of communication.
[I] H. “Electronic signature” means electronic
symbols or process attached to or logically associated with a record, adopted
and executed by an individual with the intent to sign the record or electronic
form.
[J] I. “Good cause” means a substantial reason,
one that affords a legal excuse, or a legally sufficient ground or
reason.
[K] J. “IVR” means the interactive voice response
system used by the [state office claims] department to [process
claims] administer the Unemployment Compensation Law.
[L] K. “Password” means a series of letters and
numbers intended by the sender and receiver to provide additional security to
electronic transmissions. Typically, the password is adopted by the sender and
conveyed to the receiver prior to a series of communications. The password is
used to verify the identity of the sender of the communications. The password,
along with the sender’s “username” can constitute a signature for all legal
purposes.
[M] L. “Personal identification number” or “PIN”
means a series of letters and numbers intended by the sender and receiver to
provide additional security to electronic transmissions. The terms “password” and “PIN” are used
interchangeably in the department’s rules, regulations and policies.
[N] M. “Rule” and “regulation” are synonymous and
refer to provisions of the New Mexico Administrative Code.
[O] N. “Secretary” means the cabinet secretary of
the New Mexico department of workforce solutions or that person’s official
designee as provided in the department’s internal policies and procedures.
[P] O. “Signature” means any means of signature
including, but not limited to, manual, facsimile, electronic, digital or other
means permitted by law.
[Q. “Sole
proprietorship” is a business operated by individual whose ownership interest
is not held as shares in a corporation, limited liability company, general or
limited partnership or limited liability partnership. The use of the terms
“sole proprietor” or “sole proprietorship” do not exclude marital community
ownership or a marital partnership.
R. “State office
claims” means the claims section of the unemployment insurance bureau of the
employment security division of the New Mexico department of workforce
solutions.]
[S] P. “Tax section” means the tax administration
section of the unemployment insurance [bureau of the employment security]
division of the New Mexico department of workforce solutions.
[T. “The
assistant unemployment bureau chief for claims” means that person or that
person’s official designee.
U. “The assistant
unemployment bureau chief for tax” means that person or that person’s official
designee.]
[V] Q. “The director of the employment security division”
means that person or that person’s official designee as provided in the
department’s internal policies and procedures.
[W. “The
unemployment insurance bureau chief” means that person or that person’s
official designee as provided in the department’s internal policies and
procedures.]
[X] R. “Transmit” means any method of
communication customary in the business community, including but not limited to
U.S. postal service, private courier services, personal delivery and electronic
communications such as telephone, facsimile, electronic mail and internet. Unless specifically required by law or
department rule, transmissions and communications do not require hard or paper
documents. Unless specifically required
by law or department rule, the date and time of the receipt of the transmittal
by the appropriate department official is the received or filed date.
[Y] S. “Unemployment Compensation Law” means
Section 51-1-1 et seq. NMSA 1978 as amended from time to time.
[Z] T. “Username” means the term as commonly used
in electronic communication which is an abbreviation of the name of the sender
of electronic communications. Typically,
the username, which is less secure, is used in conjunction with a password or
PIN to provide secure communications between a sender and receiver while
allowing the receiver assurances and verification of the identity of the
sender.
[AA] U. "Wages" means all [remuneration]
compensation for employment except as provided in these rules or in state
and federal statutes applicable to unemployment compensation.
(1) Borrowed
monies, including monies borrowed from a 401(K) or other pension account, even
if such borrowed money may create a taxable event, shall not be deemed [remuneration]
compensation or wages such as to disqualify the individual from
unemployment benefits.
(2) 26
U.S. C. Section 3306(b)(13) of the Internal Revenue Code excludes from the
definition of wages “any payment made, or benefit furnished, to or for the
benefit of an employee if at the time of such payment or such furnishing it is
reasonable to believe that the employee will be able to exclude such payment or
benefit from income under section 127 or 129.” Under 26 U.S.C. Section 127 of
the Internal Revenue Code, employer-paid education expenses are excludable from
the gross income of and wages of an employee if provided under an educational
assistance plan. This exclusion applies to both graduate and undergraduate
courses and is effective with respect to courses beginning after December 31,
2001.
[11.3.100.7
NMAC - N, 01-01-2003; A, 11-15-2012; A,
10/29/2019]
11.3.100.102 VALUATION
OF [REMUNERATION] IN KIND COMPENSATION:
A. If a claimant
receives any wages in a medium other than cash, the reasonable cash value of
any [remuneration] compensation other than cash shall be deemed
for all purposes of the Unemployment Compensation Law to be either:
(1) the
amount agreed upon between the employing unit and the claimant if the terms of
the agreement are reported to the department and the department agrees that
such agreed amount or value is reasonable; or
(2) the
cash value as shown to the satisfaction of the department.
B. If the
department determines that the amount agreed to is unreasonable, or if the
employing unit and the individual fail to agree upon an amount, or if the
employing unit fails to report the terms of an agreement to the department and
fails to show the cash value of such non-cash [remuneration] compensation
prior to the due date of contributions or payment in lieu of contributions
with respect to such wages, the department shall fix an amount or value after
considering all available information or evidence. The amount fixed by the
department shall be deemed for all purposes of the Unemployment Compensation Law
to be the cash value of the claimant’s wages received in any medium other than
cash.
[7-15-98;
11.3.100.102 NMAC - Rn, 11 NMAC 3.100.102, 01-01-2003; Repealed, 11-15-2012; 11.3.100.102 NMAC - Rn & A,
11.3.100.105 NMAC, 11-15-2012, A, 10/29/2019]
11.3.100.106 AVAILABILITY AND CONFIDENTIALITY OF
DEPARTMENT RECORDS:
A. The Public
Records Act permits the inspection of public records of this state “except as
otherwise provided by law,” Paragraph (8) of Subsection A of Section 14-2-1
NMSA 1978. Section 51-1-32 NMSA 1978
requires that “information obtained from employers, employing units or
claimants pursuant to the administration of the Unemployment Compensation Law
and determinations as to the benefit rights of any claimant are confidential
and shall not be open to inspection in any manner revealing the claimant’s
employer’s or employing unit’s identity except that such information may be
made available to those designated persons and agencies, and for the purposes
specified in regulations issued by the secretary.”
B. The department’s
files and records, including but not limited to investigation reports,
statements, memoranda, correspondence or other data, regardless of the media on
which stored, pertaining to matters under consideration or scheduled for hearing,
other departmental proceeding or judicial appeal shall be available for
inspection and copying, at any reasonable time by the employing unit or
individual who is a party to any proceeding before the department.
C. The contents of
the department’s files and records shall not be released to any person except
the employers, employing units or claimants to whom the file or record pertains
or the employers’, employing units’ or
claimants ’authorized representative, and then, only upon a signed, written release,
court order, grand jury subpoena or search warrant. Except in instances of court orders, grand
jury subpoenas and search warrants, if more than one party is named in the file
or record sought, both parties must sign a consent to the release of the file
or record if it is sought for any purpose other than a proceeding before the
department.
D. With the consent
and approval of the secretary and upon advice of the department’s general
counsel, the contents of the department’s files and records may be released to
law enforcement agencies for the purpose of criminal investigations and child
support proceedings.
E. From time to
time, the department may enter into agreements to exchange information with
other government agencies and with non-government providers of public
assistance, which agreements may provide for the exchange of information
otherwise confidential under Section
51-1-32 NMSA 1978. The conveyance of
this information is for the purpose of obtaining information necessary for the
department to provide services to its customers or so that other agencies can
provide public assistance benefits to the individuals about whom the
information pertains. In such instances,
every reasonable effort shall be made to maintain the confidentiality of the information
exchanged.
F. Unless otherwise
provided by statute or a written agreement provided in Subsection E of
11.3.100.106 NMAC, the department shall charge the indicated fees for copies of
department files and records:
[(1) audio tape, $3.00 per tape;
(2) video
tape, $5.00 per tape;
(3) floppy
disc, $1.00 per disc;]
[(4)] (1) CD or DVD disc,
$5.00 per disc;
[(5)] (2) printed paper
copies, $1.00 of first page of file or request; 50 cents per page thereafter up
to 100 copies; 25 cents all copies thereafter within the same file or request;
[(6)] (3) staff research
time, $20.00 per hour for all time in excess of one hour spent in locating or
reviewing a file prior to copying;
[(7)] (4) employment or
income verification, whether or not copies are requested, $6.00; and
[(8)] (5) any other request
shall be charged at a reasonable rate for the equipment, staff and other
resources used to provide the copies.
[11.3.100.106
NMAC - N, 01-01-2003; 11.3.100.106 NMAC - Rn &
A, 11.3.100.109 NMAC, 11-15-2012; A, 10/29/2019]
11.3.100.107 WEBSITE:
A. For the
convenience of the department, its employees, its customers and the general
public, the department operates and maintains one or more websites to provide a
portal to services offered by the department.
The website contains original material pages and material developed by
the department as well as commercially prepared software systems acquired to
provide access to services that support the [Workforce Investment Act] Workforce
Innovation Opportunities Act and the department’s mission. The department website also features links to
the websites of other providers who also offer services that are related or
complementary to the services offered by the department.
B. Binding
agreement: Use of the department’s
website constitutes acceptance as a contract of the published terms and
conditions as provided in this rule and as published on the website from time
to time.
C. General
disclaimer: The department shall attempt
to ensure that the information on the website is accurate by continuously
updating the information. The department does not warrant or guarantee that the
information is free from error. The
website is a work in progress, under constant development in order to better
serve the website users. The department
accepts no liability for any loss or damage, direct, indirect, consequential or
otherwise, incurred in the reliance on the material, information or programs
provided on the website.
D. Public
information: Information on the website
is public information pursuant to the Public Records Act, Sections 14-2-1
through 14-2-12 NMSA 1978.
E. Property of the
department: All the material,
information or programs on the department website are the property of the department
unless otherwise specified. The
material, information or programs on the department website:
(1) are
provided as a public service for informational and educational purposes only.
(2) are
not intended as legal advice of any kind.
(3) may
be used only for the purpose of gaining general information or for nonprofit
purposes.
(4) is
for public use and may be duplicated and disseminated for non-commercial
purposes so long as not subject to another's copyright; any such duplication or
dissemination must be accompanied by a citation acknowledging the department as
the source of the information and the department’s copyright and trademark
notices;
(5) may
not be used for commercial purposes of any kind without the written permission
of a division director or higher officer of the department except that
employment listings may be used by individual website users for obtaining
employment.
F. Copyright
notice: All copyrightable text,
graphics, design, selection and arrangement of information is protected by
copyright (2011, New Mexico department of workforce solutions).
G. Third party
links: The department website provides
links to third party websites and vice versa as a courtesy and convenience to
the department’s website users. The
department is not responsible for the content or condition of third party
websites. The department has no
responsibility or liability to users for the content or accuracy of websites
linked from this page or websites that provide a link to this page. The department does not endorse the views,
products or services of third party websites.
The department has no responsibility for the privacy practices or
internal content of linked sites. The provision of a link provides no assurance
that the linked site has a privacy policy similar to the department’s privacy
policy.
H. Privacy: The department is committed to maintaining
the privacy of the personal information of those persons who access and use the
department’s website. The department is
committed to maintaining the security of its computer system.
(1) Monitoring: The department’s computer system including
the website is monitored to ensure proper operation, to verify the functioning
of applicable security features and for similar purposes.
(2) Personally
identifiable information: For the
purpose of the website, “personally identifiable information” means information
collected on-line that could serve to identify an individual, including, but
not limited to:
(a) first
and last name;
(b) physical
address;
(c) e-mail
address;
(d) telephone
number;
(e) social
security number;
(f) tax
identification number;
(g) credit
card information;
(h) bank
account information;
(i) any
combination of information that could be used to determine identity.
(3) Except
where specified, website users need not provide personally identifiable
information to visit the department website or download information from the
website.
(4) Any
personally identifiable information provided to the department will be used
solely by the department, its agents, contractor and employees in accordance
with Section 14-8-21 NMSA 1978, unless
the information is designated as a public record under the Public Records Act.
(5) Unless
the user chooses to provide the information for a specific purpose, personally
identifiable information is not collected and maintained by the department.
(6) Personally
identifiable information may be required to qualify or determine eligibility
for certain government services.
(7) The
department shall take reasonable precaution to protect the confidentiality of
personally identifiable information from loss, misuse, alteration or disclosure
to unauthorized persons.
(8) Unless
otherwise prohibited by state or federal law or applicable rules and
regulations, an individual may access and correct personally identifiable
information whether or not the access was created by accident, unauthorized
access or a change in circumstances.
(9) E-mail
or other forms of information requests sent to the department website may be
saved and used to respond to the request, to forward the request to the
appropriate agency, communicate updates of information or to provide the
department’s webmaster with valuable customer feedback to assist in improving
the website.
(10) Despite
all precautions, the department does not guarantee or warrant users of the
website against hardware failure, unauthorized intrusion or other technical
problems that might affect privacy and confidentiality.
(11) To
maintain the website user’s privacy, the department requires the use of a
password before accessing any personal or account information. The department shall provide methods for the
assignment of user names and passwords in a manner customary in the industry
from time to time.
I. Trespass: The department shall use all legally
available means to prevent, monitor and investigate any attempt to deface,
delete, modify or misappropriate the department’s website, server, database,
information system or other department technology asset.
J. Finality: No information provided to the department
through this electronic medium is final until the department transmits a
confirmation to the website user.
K. Publication of an
amendment to website policy: A copy of
this rule shall be published on the website.
From time to time, the department may heighten, but shall not decrease
the privacy policy without amendment of this rule.
[11.3.100.107
NMAC - N, 01-01-2003; 11.3.100.107 NMAC - Rn &
A, 11.3.100.110 NMAC, 11-15-2012; A, 10/29/2019]
11.3.100.109 ELECTRONIC TRANSACTIONS:
A. Official communications with the
department shall contain all material customarily found on paper forms.
B. [Additionally,] Electronic forms and records used by the
department shall clearly indicate the purpose of the form, instructions for
completion and submission electronically, information on receiving assistance
by telephone or e-mail, require the submission of a valid e-mail address,
telephone number or United States postal service address at which the sender
can be contacted regarding the information submitted and the purpose underlying
the submission of the information.
C. A person choosing to communicate
with the department electronically bears the responsibility of ensuring that
the information submitted and the methods by which the person can be contacted
are accurate. The recipient must
notify the department in the event of an address change.
D. If electronic
correspondence is elected, the recipient will not receive correspondence by US
mail. It is the recipient’s obligation
to exercise due diligence in checking the email of record and to frequently log
into the online account to obtain any correspondence.
E. The use of a person’s name,
identifying information, username and password or PIN in electronic and other
communications with the department is deemed a signature for all legal
purposes.
F. Persons using a means of
electronic communication shall be advised that the submission of the
information using the identifier is deemed a binding signature.
G. Use of
electronic notification constitutes reasonable and proper notice for all
purposes, laws, rules and regulations.
H. Employers shall
submit all quarterly wage reports to the Department electronically using their
online accounts, unless the Department has granted an express, written
exception.
I. Third party
administrators shall remit all quarterly wage contributions, payments, and fact
finding responses electronically.
[11.3.100.109
NMAC - N, 01-01-2003; 11.3.100.109 NMAC - Rn &
A, 11.3.100.112 NMAC, 11-15-2012; A, 10/29/2019]