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,
P.O. Box 1928 Albuquerque, NM 87103.
[11.3.300.1
NMAC - Rp, 11.3.300.1 NMAC, 11/1/2018; A, 10/29/2019]
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 benefits payable
to a claimant with respect to their unemployment, under the unemployment
compensation law of any state.
G. “Claimant” means an individual who has
filed an initial claim, additional claim or reopened claim for unemployment
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, or 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 compensation 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 A, 10/29/2019]
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 21 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 response.
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 A, 10/29/2019]
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
last 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 information from the department must be received by the
department within 10 calendar days from the date transmitted. Responses to requests for additional
information must be received within two business days from the date of transmission.
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 A, 10/29/2019]
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 within 14 days of the last date of the week requiring 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 A, 10/29/2019]
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. The employer shall
provide the department full and complete information
to the request for additional information within two business days from the
transmission. Unless excused by the
department, the response must be an electronic
transmittal.
C. Initial
determination: A determination on any claim
for unemployment benefits shall be transmitted only after the department has
evaluated the claim.
(1) If
an employer’s response is not received within 10 calendar days after the
transmission of the notice of a claim and a non-monetary issue is not raised in
the application for benefits, a determination shall be made 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 10-day period.
(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 20 calendar days from the original
determination date or 20 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 20 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 A, 10/29/2019; A, 1/12/2021]
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 11.3.500.8 NMAC.
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 Section 51-1-5(B) 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 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;
(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; 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.
(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; A, 6/21/2022]
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 beginning with the last week worked prior to separation from employment.
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 A, 10/29/2019]
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 of Sections 51-1-7,
Subsection B of Section 51-1-7 or Subsection C of Section 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 or a referral hall and meet the union
requirements for job referral or placement;
(a) the claimant must be a member in good
standing at the time of certification;
(b) the hiring hall or referral hall must
be actively seeking 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;
(3) Other
unions may apply for work search waivers by submitting a request in writing to
the secretary, who may upon discretion make an exception to the work search
requirements.
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 and must retain a
copy of any email confirmation received as a result of applying for a job on-line;
(1) This
information must be provided to department representatives upon request;
(2) the
claimant must provide the requested information no later than 10 calendar days
from the date of the department’s request;
(3) the
claimant must provide sufficient information for the department to verify the
claimant’s work search efforts. If the
claimant is able to provide specific job numbers or requisition numbers for the
job applied for, this information will be considered sufficient to verify the contact;
(4) failure
to provide the required information without good cause may result in a denial
of benefits for the week in question;
(5) if
the information provided is insufficient to verify a valid work search
occurred, benefits for the week in question will be denied;
(6) 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;
(7) any
denial imposed for failure to provide the required information may be appealed
pursuant to 11.3.300.500.9 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 11.3.300.500.9 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.
F. In cases where
the department determines a claimant is in a temporary lay-off status due to a
government furlough or shutdown, the department may waive the work search
requirements during the period of the temporary lay-off for all affected
claimants.
G. In the event of
a public health emergency declaration issued by the governor, work searches
shall be waived for all claimants at the discretion of the secretary until the
end of the public health crisis.
[11.3.300.320
NMAC - Rp, 11.3.300.320 NMAC, 11/1/2018; A/E, 1/9/2019 A, 10/29/2019; A/E
7/28/2020; A, 1/12/2021]
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;
C. if the claimant
does not participate in reemployment services as required by the department,
benefits shall be denied for the week of non-participation.
[11.3.300.321
NMAC - Rp, 11.3.300.321 NMAC, 11/1/2018 A, 10/29/2019]
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 it is
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
a 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 OR ANY ENACTED FEDERAL EXTENSION PROGRAM:
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), Federal Extended Benefits, or any enacted
federal extension program 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 caused 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 any other enacted federal extension program 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 A, 10/29/2019]
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 benefit eligibility. 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. 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 A, 10/29/2019]
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]
11.3.300.328 APPRENTICES:
A. Apprentices
participating in an approved apprenticeship program registered with the
Apprenticeship Office through the department of workforce solutions who are
required to attend unpaid training sessions during weeks in which they are not
otherwise receiving compensation may be eligible to receive unemployment
benefits for the training weeks under 51-1-1 et seq. NMSA as long as all other
unemployment eligibility requirements are met.
B. During the week
in which an apprentice is eligible for unemployment benefits though this
provision, the work search requirements will be waived since the apprentice
will have a predetermined return to work
date established though their apprentice program.
[11.3.300.328
NMAC - N, 1/12/2021]
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 5/23/1990; Regulation 303, Timely Response
to Request for Information, amended and filed 5/4/1990; Regulation 304, Late
Filing of Continued Claims, amended and filed 5/4/1990; Regulation 306, Claim
Registration Form, amended and filed 9/20/1994; Regulation 308.1, Termination
of Continued Claims, amended and filed 11/5/1987; Regulation 310, Interstate
Claims, amended and filed 8/17/1990; Regulation 311, Combined Wage Claims,
amended and filed 8/17/1990; Regulation 314, Fraudulent Claims, amended and
filed 10/16/1990; Regulation 315, Retirement Income, amended and filed
9/20/1994; Regulation 316, Availability of Full-Time Students, amended and
filed 1/8/1990; Regulation 317, Wages in Lieu of Notice, Backpay for Loss of
Employment, or Vacation Pay and Benefit Rights, amended and filed 9/20/1994;
Regulation 318, Benefits Due Deceased Persons, amended and filed 5/4/1990;
Regulation 319, Standards for Wages Eligible to Purge Benefit Disqualification;
Bona Fide Employment, amended and filed 6/14/1991; Regulation 320, Work Search
Requirement, amended and filed 9/20/1994; Regulation 321, Reemployment
Services, amended and filed 9/20/1994; Regulation 322, Claim Cancellations,
amended and filed 9/20/1994.
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.