TITLE
11 LABOR AND WORKERS
COMPENSATION
CHAPTER
3 EMPLOYMENT SECURITY
PART
100 GENERAL PROVISIONS
11.3.100.1 ISSUING AGENCY:
New Mexico Department of Workforce Solutions, 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]
11.3.100.2 SCOPE: General Public
[7-15-98;
11.3.100.2 NMAC - Rn, 11 NMAC 3.100.2, 01-01-2003]
11.3.100.3
STATUTORY AUTHORITY: NMSA 1978 Sections 51-1-1 to 51-1-59.
[7-15-98;
11.3.100.3 NMAC - Rn & A, 11 NMAC 3.100.3, 01-01-2003]
11.3.100.4 DURATION: Permanent
[7-15-98;
11.3.100.4 NMAC - Rn, 11 NMAC 3.100.4, 01-01-2003]
11.3.100.5 EFFECTIVE DATE: July 15, 1998, unless a later date is cited
at the end of a section.
[7-15-98;
11.3.100.5 NMAC - Rn & A, 11 NMAC 3.100.5, 01-01-2003]
11.3.100.6 OBJECTIVE:
To explain the general New Mexico department of workforce solutions
rules and regulations addressing the Unemployment Compensation Law.
[7-15-98;
11.3.100.6 NMAC - Rn & A, 11 NMAC 3.100.6, 01-01-2003; A, 11-15-2012]
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. “Claim” means a
request for benefits pursuant to the Unemployment Compensation Law.
B. “Contribution”
means the state unemployment insurance tax imposed on employers pursuant to the
Unemployment Compensation Law.
C. “Department”
means the New Mexico department of workforce solutions.
D. “Division” means
the unemployment insurance division of the New Mexico department of workforce
solutions, formerly the employment security division, formerly known as the
employment security commission and formerly known as the employment security
department.
E. “Electronic” means
relating to technology having electrical, digital, magnetic, wireless,
telephonic, optical, electromagnetic or similar capabilities.
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.
G. “E-mail” or
“electronic mail” means communications similar to paper letters and memos
transmitted electronically for the purpose of communication.
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.
I. “Good cause”
means a substantial reason, one that affords a legal excuse, or a legally
sufficient ground or reason.
J. “IVR” means the
interactive voice response system used by the department to administer the
Unemployment Compensation Law.
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.
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.
M. “Rule” and
“regulation” are synonymous and refer to provisions of the New Mexico
Administrative Code.
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.
O. “Signature”
means any means of signature including, but not limited to, manual, facsimile,
electronic, digital or other means permitted by law.
P. “Tax section”
means the tax administration section of the unemployment insurance division of
the New Mexico department of workforce solutions.
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.
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.
S. “Unemployment
Compensation Law” means NMSA 1978, Section 51-1-1 et seq. as amended from time
to time.
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.
U. "Wages"
means all 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 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]
11.3.100.8
THROUGH 11.3.100.100: [RESERVED]
11.3.100.101 FILING DATE:
Any report, response or other document required to be filed by the
Unemployment Compensation Law or these rules, and any appeal, notice or other
pleading required to be filed with the department shall be deemed filed on the
date it is received by the department or, if mailed, as of the date of the
postmark on the envelope. If it is
postmarked at or prior to the deadline, it will be deemed filed timely if
received by the department within a reasonable period of time. Unless otherwise specified by law or rules
any report, response document or appeal that is mailed but has no postmark date
shall be considered timely if, on the basis of customary mail practice and the
actual date of delivery, it may be presumed to have been mailed within the
specified time period. If the final day
for a report, response document or appeal falls on a date when the department
offices are closed, receipt on the first business day thereafter shall be
considered timely.
[7-15-98;
11.3.100.101 NMAC - Rn, 11 NMAC 3.100.101, 01-01-2003; Repealed, 11-15-2012; 11.3.100.101 NMAC - Rn & A,
11.3.100.104 NMAC, 11-15-2012]
11.3.100.102 VALUATION
OF IN KIND COMPENSATION:
A. If a claimant
receives any wages in a medium other than cash, the reasonable cash value of
any 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 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]
11.3.100.103 AFFIRMATIONS UNDER PENALTY OF PERJURY:
A. All information
and statements required of an individual by the department in furtherance of
the department’s duties are deemed material.
B. All submissions
to the department of information and statements are deemed made as an
affirmation or oath under penalty of perjury pursuant to NMSA 1978, Sections
14-13-2 and 30-25-1.
C. All signatures
or affirmations requests on department forms whether paper, electronic or voice
submission shall carry the warning in substantially the following format: “I solemnly, sincerely and truly declare and
affirm that the statements made herein and the information supplied by me are
true and correct, with no material omissions, and I do so under the pains and
penalties of perjury.”
[7-15-98;
11.3.100.103 NMAC - Rn & A, 11 NMAC 3.100.103, 01-01-2003; Repealed, 11-15-2012; 11.3.100.103 NMAC - Rn & A,
11.3.100.106 NMAC, 11-15-2012]
11.3.100.104 DE MINIMIS AMOUNTS:
A. Money owed by
the department to individuals or entities which amounts are equal to or less
than the combined total amount of $5.00 in any quarter shall be retained on the
department’s books as a credit to that individual, entity or account, but no
check or payment shall be issued absence a specific request by the party to
whom the credit is due.
B. Money owed by
individuals or entities to the department which amounts are equal to or less
than the combined total amount of $20.00 will not be billed or invoiced or
liens issued, but the amounts due shall be retained on the department’s books
as a debit owing by that individual, entity or account.
[7-15-98;
11.3.100.104 NMAC - Rn & A, 11 NMAC 3.100.104, 01-01-2003; 11.3.100.104 NMAC - Rn & A, 11.3.100.107 NMAC,
11-15-2012]
11.3.100.105 VERIFICATION OF INFORMATION:
A. The department
requires employers, employing units and claimants to provide their federal tax
identification numbers or social security numbers as a means of verifying
identity and eligibility for benefits under the Unemployment Compensation
Law. The department may verify all
information submitted by employers, employing units and claimants with that in
the possession of other state and federal agencies.
B. An employer or
employing unit’s failure or refusal to provide the required numbers will result
in enforcement action.
C. A claimant’s
failure or refusal to provide the required numbers will result in a denial of
benefits.
D. The provision of
a false identification number or a false social number by any employers,
employing units or claimants may result in criminal liability.
[7-15-98;
11.3.100.105 NMAC - Rn & A, 11 NMAC 3.100.105, 01-01-2003; 11.3.100.105 NMAC - Rn & A, 11.3.100.108 NMAC,
11-15-2012]
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 NMSA 1978, Section 51-1-32. 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) CD
or DVD disc, $5.00 per disc;
(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;
(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;
(4) employment
or income verification, whether or not copies are requested, $6.00; and
(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, 10/26/2019]
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 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, NMSA 1978, Section
14-2-1 through 14-2-12.
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 NMSA 1978, Section 14-8-21, 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]
11.3.100.108 DIGITIZED SIGNATURES: [RESERVED]
[11.3.100.108
NMAC - N, 01-01-2003; 11.3.100.108 NMAC - Rn &
A, 11.3.100.111 NMAC, 11-15-2012]
11.3.100.109 ELECTRONIC TRANSACTIONS:
A. Official
communications with the department shall contain all material customarily found
on paper forms.
B. 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 on-line 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
on-line 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]
11.3.100.110 [RESERVED]
[11.3.100.110
NMAC - N, 01-01-2003; A, 11-15-2012]
11.3.100.111 [RESERVED]
[11.3.100.111
NMAC - N, 01-01-2003; A, 11-15-2012]
11.3.100.112 [RESERVED]
[11.3.100.112
NMAC - N, 01-01-2003; A, 11-15-2012]
HISTORY
OF 11.3.100 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 Rules and Regulations of the Commission, filed
10-1-74; Regulation 101, Services of Real Estate Salespersons, filed 6-14-91;
Regulation 103, Approved Training, filed 6-14-91; Regulation 104, Filing Date,
filed 5-4-90; Regulation 105, Valuation of Remuneration In-Kind, filed 5-4-90.
History
of Repealed Material: [RESERVED]