New Mexico Register / Volume XXXI, Issue 13 / July 14, 2020
This is an amendment
to 2.82.2 NMAC, Sections 9, 11 and 12, effective 7/14/2020.
2.82.2.9 REGULAR MEMBERS:
A. In
four-year colleges, technical and vocational institutes and community or junior
colleges, public school districts, and state operated schools, "regular
members" shall be all employees other than retired members, retired
members [working in the return to work program] who have returned to
work under 2.82.5.15 NMAC, [retired members working full time
equivalency (“FTE”) .25 FTE or less under] 2.82.5.16 NMAC, or 2.82.5.17
NMAC, participants in the alternative retirement plan (ARP) or employees
excluded under 2.82.2.11 NMAC.
B. Any
member except retired members [working in the return to work program] who
have returned to work under 2.82.5.15 NMAC, [retired members working .25
FTE or less under] 2.82.5.16 NMAC, or 2.82.5.17 NMAC, participants
in the alternative retirement plan (ARP), or employees excluded under 2.82.2.11
NMAC, who is regularly employed in any of the following local administrative
units, shall be a "regular member" if the member holds a license issued
by the public education department at the time of commencement of employment in
such local administrative units:
(1) northern New Mexico college;
(2) New Mexico boys’ school;
(3) girls’ welfare home;
(4) Los Lunas medical center;
(5) public education department;
(6) educational retirement board;
(7) New Mexico school for the blind and visually impaired;
(8) New Mexico school for the deaf;
(9) New
Mexico activities association; and
(10) regional education cooperatives.
C. Except
retired members [working in the return to work program] who have
returned to work under 2.82.5.15 NMAC, [retired members working .25 FTE
or less under] 2.82.5.16 NMAC, or 2.82.5.17 NMAC, participants in
the alternative retirement plan (ARP) or employees excluded under 2.82.2.11
NMAC, regular membership is a condition of employment and all local administrative
unit employees who qualify as "regular members" must be covered under
the Educational Retirement Act, commencing with the first day of employment.
D. Except
retired members [working in the return to work program] who have
returned to work under 2.82.5.15 NMAC, [retired members working .25 FTE
or less under] 2.82.5.16 NMAC, or 2.82.5.17 NMAC, participants in
the alternative retirement plan (ARP) or employees excluded under 2.82.2.11
NMAC, any person regularly employed, whether full-time or part-time, in any
state institution or agency described in Subsection B of 2.82.2.8 NMAC, shall
be a regular member if employed in an educational program and holds a license issued
by the public education department.
[2.82.2.9 NMAC - Rp, 2.82.2.9 NMAC, 10/31/2017; A, 11/12/2019; A, 7/14/2020]
2.82.2.11 EMPLOYEES EXCLUDED FROM COVERAGE:
A. Any person enrolled as a student in any of the local administrative units outlined in Subsection A of 2.82.2.8 NMAC, and who is also employed by the local administrative unit in which he is enrolled, shall be considered a student and not eligible for either "regular" or "provisional" membership under the Educational Retirement Act, except that members of the faculty or full-time staff, who may be incidentally enrolled in classes, shall not be affected by this rule. Under no circumstances shall graduate assistants, teaching fellows, or students in positions of similar nature, be considered eligible for coverage under the Educational Retirement Act. This includes any and all participation in the teacher enhancement program or participation in similar graduate programs.
B. Any
person whose full time equivalency (“FTE”) is .25 or less, and who is not a
covered employee of another local administrative unit, shall not be covered for
contribution purposes. [On and after
July 1, 2020, a retired member who has returned to employment at a level of .25
FTE or less, regardless of salary level, shall make nonrefundable contributions
to the fund as would be required by Section 22-11-21 NMSA 1978 if the retired
member were a non-retired employee.]
For purposes of calculating a person’s FTE, employment with all local
administrative units shall be aggregated. Any person employed on July 1, 1994 who was
then covered under the Educational Retirement Act shall continue to be covered
for the duration of that employment.
[C. Any employee engaged on a day-to-day basis to replace
another employee who is temporarily absent shall be considered a
"substitute" and shall not be covered under the Educational
Retirement Act. An employee engaged to
fill a vacant position (including a position vacated by an extended leave of
absence) is not considered a “substitute” and must be covered under the
Educational Retirement Act.]
[D] C. Independent
contractors who perform services for local administrative units on a fee basis
are not eligible for membership under the Educational Retirement Act as a
result of having performed such service, and sums paid for such service shall
not be covered for purposes of contributions. The following factors shall be considered in
determining whether an individual qualifies as an independent contractor:
(1) registration with the New Mexico department of taxation and revenue to pay gross receipts tax;
(2) the existence of a written contract with the local administrative unit setting forth the services to be provided and the compensation to be paid;
(3) whether the person receives benefits such as paid annual or sick leave, health insurance and other benefits that the local administrative unit provides its regular employees or is paid as an employee by the local administrative unit;
(4) whether the person satisfies internal revenue service guidelines for determining that an individual is an independent contractor rather than an employee;
(a) as necessary, the director shall make available forms for use by local administrative units for use in making this determination;
(b) the board reserves the right to examine the complete forms, contracts and other agreements, and any other materials as may be necessary for the purpose of determining whether an individual is an independent contractor or employee.
[E] D. All students
enrolled in any public school, grades 1-12.
[F. Any
person retired pursuant to the Public Employees Retirement Act (“PERA”) who is
hired prior to July 1, 2019 by a local administrative unit as a certified
police officer shall not make contributions to the fund. If subsequent
termination of employment occurs, followed by re-employment as a police officer
or in any other capacity on or after July 1, 2019, with either the same or a
different local administrative unit, the provisions of Subsection B of Section
22-11-25.2 NMSA 1978 shall not apply and such person shall make contributions
to the fund.
(1) For purposes of
Subsection B of Section 22-11-25.2 NMSA 1978, “police officer” means an officer
who is certified pursuant to the Law Enforcement Training Act and whose primary
responsibility is the prevention and detection of crime or the enforcement of
the penal or traffic or highway laws of the state. For example, a university police officer,
whose duty is to enforce the laws of the state, albeit within the boundaries
set forth in Subsection B of Section 29-5-2 NMSA 1978, is a “police officer”. Examples of employees who are not police officers include, but are not limited
to, police dispatchers, administrative staff and security guards.
(2) Whether an
employee is considered a police officer will be based primarily on the
employee’s specific job duties. A mere
connection to law enforcement activity is insufficient by itself to meet the
definition of police officer. An
employee will not be considered a police officer unless his or her primary
responsibility is the prevention and detection of crime or the enforcement of
the penal or traffic or highway laws of the state.
(3) The local
administrative unit that employs the police officer shall make contributions to
the fund as provided in the Educational Retirement Act.]
[2.82.2.11 NMAC - Rp, 2.82.2.11 NMAC, 10/31/2017; A, 11/12/2019; A, 7/14/2020]
2.82.2.12 RETIRED MEMBERS: For the purposes of [the return to work
program,] 2.82.5.15 NMAC, 2.82.5.16 NMAC and 2.82.5.17 NMAC, a retired
member shall be defined as any member who has retired pursuant to the
Educational Retirement Act.
[2.82.2.12 NMAC - Rp, 2.82.2.12 NMAC, 10/31/2017; A, 7/14/2020]