New Mexico § 51-1-42 - Definitions

§ 51-1-42. Definitions

As used in the Unemployment Compensation Law: A. “ base period ” means the first four of the last five completed calendar quarters immediately preceding

the first day of an individual's benefit year, except that “ base period ” means for benefit years beginning on or after January 1, 2005 for an individual

who does not have sufficient wages in the base period as defined to qualify for benefits

pursuant to Section 51-1-5 NMSA 1978 , the individual's base period shall be the last four completed calendar quarters

immediately preceding the first day of the individual's benefit year if that period

qualifies the individual for benefits pursuant to Section 51-1-5 NMSA 1978; provided that: (1) wages that fall within the base period of claims established pursuant to this

subsection are not available for reuse in qualifying for a subsequent benefit year;

and (2) in the case of a combined-wage claim pursuant to the arrangement approved by the

federal secretary of labor, the base period is that base period applicable under the

unemployment compensation law of the paying state; B. “ benefits ” means the cash unemployment compensation payments payable to an eligible individual

pursuant to Section 51-1-4 NMSA 1978 with respect to the individual's weeks of unemployment; C. “ contributions ” means the money payments required by Section 51-1-9 NMSA 1978 to be made into the fund by an employer on account of having individuals performing

services for the employer; D. “ employing unit ” means any individual or type of organization, including any partnership, association,

cooperative, trust, estate, joint-stock company, agricultural enterprise, insurance

company or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy,

trustee or successor thereof, household, fraternity or club, the legal representative

of a deceased person or any state or local government entity to the extent required

by law to be covered as an employer, that has in its employ one or more individuals

performing services for it within this state. An individual performing services for an employing unit that maintains two or more

separate establishments within this state shall be deemed to be employed by a single

employing unit for all the purposes of the Unemployment Compensation Law. An individual performing services for a contractor, subcontractor or agent that

is performing work or services for an employing unit, as described in this subsection,

that are within the scope of the employing unit's usual trade, occupation, profession

or business, shall be deemed to be in the employ of the employing unit for all purposes

of the Unemployment Compensation Law unless the contractor, subcontractor or agent

is itself an employer within the provisions of Subsection E of this section; E. “ employer ” includes: (1) an employing unit that: (a) unless otherwise provided in this section, paid for service in employment as defined

in Subsection F of this section wages of four hundred fifty dollars ($450) or more

in any calendar quarter in either the current or preceding calendar year or had in

employment, as defined in Subsection F of this section, for some portion of a day

in each of twenty different calendar weeks during either the current or the preceding

calendar year, and irrespective of whether the same individual was in employment in

each such day, at least one individual; (b) for the purposes of Subparagraph (a) of this paragraph, if any week includes both

December 31 and January 1, the days of that week up to January 1 shall be deemed one

calendar week and the days beginning January 1, another such week; and (c) for purposes of defining an “employer” under Subparagraph (a) of this paragraph,

the wages or remuneration paid to individuals performing services in employment in

agricultural labor or domestic services as provided in Paragraphs (6) and (7) of Subsection

F of this section shall not be taken into account; except that any employing unit

determined to be an employer of agricultural labor under Paragraph (6) of Subsection

F of this section shall be an employer under Subparagraph (a) of this paragraph so

long as the employing unit is paying wages or remuneration for services other than

agricultural services; (2) any individual or type of organization that acquired the trade or business or

substantially all of the assets thereof, of an employing unit that at the time of

the acquisition was an employer subject to the Unemployment Compensation Law; provided

that where such an acquisition takes place, the secretary may postpone activating

the individual or type of organization pursuant to Section 51-1-11 NMSA 1978 until such time as the successor employer has employment as defined in Subsection

F of this section; (3) an employing unit that acquired all or part of the organization, trade, business

or assets of another employing unit and that, if treated as a single unit with the

other employing unit or part thereof, would be an employer under Paragraph (1) of

this subsection; (4) an employing unit not an employer by reason of any other paragraph of this subsection: (a) for which, within either the current or preceding calendar year, service is or

was performed with respect to which such employing unit is liable for any federal

tax against which credit may be taken for contributions required to be paid into a

state unemployment fund; or (b) that, as a condition for approval of the Unemployment Compensation Law for full

tax credit against the tax imposed by the Federal Unemployment Tax Act, 1 is required, pursuant to that act, to be an “employer” under the Unemployment Compensation

Law; (5) an employing unit that, having become an employer under Paragraph (1), (2), (3)

or (4) of this subsection, has not, under Section 51-1-18 NMSA 1978 , ceased to be an employer subject to the Unemployment Compensation Law; (6) for the effective period of its election pursuant to Section 51-1-18 NMSA 1978 , any other employing unit that has elected to become fully subject to the Unemployment

Compensation Law; (7) an employing unit for which any services performed in its employ are deemed to

be performed in this state pursuant to an election under an arrangement entered into

in accordance with Subsection A of Section 51-1-50 NMSA 1978; and (8) an Indian tribe as defined in 26 USCA Section 3306(u) for which service in employment is performed; F. “ employment ”: (1) means any service, including service in interstate commerce, performed for wages

or under any contract of hire, written or oral, express or implied; (2) means an individual's entire service, performed within or both within and without

this state if: (a) the service is primarily localized in this state with services performed outside

the state being only incidental thereto; or (b) the service is not localized in any state but some of the service is performed

in this state and: 1) the base of operations or, if there is no base of operations,

the place from which such service is directed or controlled, is in this state; or

2) the base of operations or place from which such service is directed or controlled

is not in any state in which some part of the service is performed but the individual's

residence is in this state; (3) means services performed within this state but not covered under Paragraph (2)

of this subsection if contributions or payments in lieu of contributions are not required

and paid with respect to such services under an unemployment compensation law of any

other state, the federal government or Canada; (4) means services covered by an election pursuant to Section 51-1-18 NMSA 1978 and services covered by an election duly approved by the secretary in accordance

with an arrangement pursuant to Paragraph (1) of Subsection A of Section 51-1-50 NMSA 1978 shall be deemed to be employment during the effective period of the election; (5) means services performed by an individual for an employer for wages or other remuneration

unless and until it is established by a preponderance of evidence that: (a) the individual has been and will continue to be free from control or direction

over the performance of the services both under the individual's contract of service

and in fact; (b) the service is either outside the usual course of business for which the service

is performed or that such service is performed outside of all the places of business

of the enterprise for which such service is performed; and (c) the individual is customarily engaged in an independently established trade, occupation,

profession or business of the same nature as that involved in the contract of service; (6) means service performed after December 31, 1977 by an individual in agricultural

labor as defined in Subsection Q of this section if: (a) the service is performed for an employing unit that: 1) paid remuneration in

cash of twenty thousand dollars ($20,000) or more to individuals in that employment

during any calendar quarter in either the current or the preceding calendar year;

or 2) employed in agricultural labor ten or more individuals for some portion of a

day in each of twenty different calendar weeks in either the current or preceding

calendar year, whether or not the weeks were consecutive, and regardless of whether

the individuals were employed at the same time; (b) the service is not performed before January 1, 1980 by an individual who is an

alien admitted to the United States to perform service in agricultural labor pursuant

to Sections 214(c) and 101(15)(H) 2 of the federal Immigration and Nationality Act; 3 and (c) for purposes of this paragraph, an individual who is a member of a crew furnished

by a crew leader to perform service in agricultural labor for a farm operator or other

person shall be treated as an employee of the crew leader: 1) if the crew leader

meets the requirements of a crew leader as defined in Subsection L of this section;

or 2) substantially all the members of the crew operate or maintain mechanized agricultural

equipment that is provided by the crew leader; and 3) the individuals performing

the services are not, by written agreement or in fact, within the meaning of Paragraph

(5) of this subsection, performing services in employment for the farm operator or

other person; (7) means service performed after December 31, 1977 by an individual in domestic service

in a private home, local college club or local chapter of a college fraternity or

sorority for a person or organization that paid cash remuneration of one thousand

dollars ($1,000) in any calendar quarter in the current or preceding calendar year

to individuals performing such services; (8) means service performed after December 31, 1971 by an individual in the employ

of a religious, charitable, educational or other organization but only if the following

conditions are met: (a) the service is excluded from “employment” as defined in the Federal Unemployment

Tax Act 4 solely by reason of Section 3306(c)(8) of that act; and (b) the organization meets the requirements of “employer” as provided in Subparagraph

(a) of Paragraph (1) of Subsection E of this section; (9) means service of an individual who is a citizen of the United States, performed

outside the United States, except in Canada, after December 31, 1971 in the employ

of an American employer, other than service that is deemed “employment” under the

provisions of Paragraph (2) of this subsection or the parallel provisions of another

state's law, if: (a) the employer's principal place of business in the United States is located in

this state; (b) the employer has no place of business in the United States, but: 1) the employer

is an individual who is a resident of this state; 2) the employer is a corporation

organized under the laws of this state; or 3) the employer is a partnership or a

trust and the number of the partners or trustees who are residents of this state is

greater than the number who are residents of any one other state; or (c) none of the criteria of Subparagraphs (a) and (b) of this paragraph are met, but

the employer has elected coverage in this state or, the employer having failed to

elect coverage in any state, the individual has filed a claim for benefits, based

on such service, under the law of this state. “ American employer ” for the purposes of this paragraph means a person who is: 1) an individual who

is a resident of the United States; 2) a partnership if two-thirds or more of the

partners are residents of the United States; 3) a trust if all of the trustees are

residents of the United States; or 4) a corporation organized under the laws of the

United States or of any state. For the purposes of this paragraph, “ United States ” includes the United States, the District of Columbia, the commonwealth of Puerto

Rico and the Virgin Islands; (10) means, notwithstanding any other provisions of this subsection, service with

respect to which a tax is required to be paid under any federal law imposing a tax

against which credit may be taken for contributions required to be paid into a state

unemployment fund or which as a condition for full tax credit against the tax imposed

by the Federal Unemployment Tax Act is required to be covered under the Unemployment

Compensation Law; (11) means service performed in the employ of an Indian tribe if: (a) the service is excluded from “employment” as defined in 26 USCA Section 3306(c) solely by reason of 26 USCA Section 3306(c)(7) ; and (b) the service is not otherwise excluded from employment pursuant to the Unemployment

Compensation Law; (12) does not include: (a) service performed in the employ of: 1) a church or convention or association

of churches; or 2) an organization that is operated primarily for religious purposes

and that is operated, supervised, controlled or principally supported by a church

or convention or association of churches; (b) service performed by a duly ordained, commissioned or licensed minister of a church

in the exercise of such ministry or by a member of a religious order in the exercise

of duties required by such order; (c) service performed by an individual in the employ of the individual's son, daughter

or spouse, and service performed by a child under the age of majority in the employ

of the child's father or mother; (d) service performed in the employ of the United States government or an instrumentality

of the United States immune under the constitution of the United States from the contributions

imposed by the Unemployment Compensation Law except that to the extent that the congress

of the United States shall permit states to require any instrumentalities of the United

States to make payments into an unemployment fund under a state unemployment compensation

act, all of the provisions of the Unemployment Compensation Law shall be applicable

to such instrumentalities, and to service performed for such instrumentalities in

the same manner, to the same extent and on the same terms as to all other employers,

employing units, individuals and services; provided that if this state shall not

be certified for any year by the secretary of labor of the United States under Section 3304 of the federal Internal Revenue Code of 1986 , 26 U.S.C. Section 3304 , the payments required of such instrumentalities with respect to such year shall

be refunded by the department from the fund in the same manner and within the same

period as is provided in Subsection D of Section 51-1-36 NMSA 1978 with respect to contributions erroneously collected; (e) service performed in a facility conducted for the purpose of carrying out a program

of rehabilitation for individuals whose earning capacity is impaired by age or physical

or mental deficiency or injury or providing remunerative work for individuals who

because of their impaired physical or mental capacity cannot be readily absorbed in

the competitive labor market, by an individual receiving that rehabilitation or remunerative

work; (f) service with respect to which unemployment compensation is payable under an unemployment

compensation system established by an act of congress; (g) service performed in the employ of a foreign government, including service as

a consular or other officer or employee or a nondiplomatic representative; (h) service performed by an individual for a person as an insurance agent or as an

insurance solicitor, if all such service performed by the individual for the person

is performed for remuneration solely by way of commission; (i) service performed by an individual under the age of eighteen in the delivery or

distribution of newspapers or shopping news, not including delivery or distribution

to any point for subsequent delivery or distribution; (j) service covered by an election duly approved by the agency charged with the administration

of any other state or federal unemployment compensation law, in accordance with an

arrangement pursuant to Paragraph (1) of Subsection A of Section 51-1-50 NMSA 1978 during the effective period of the election; (k) service performed, as part of an unemployment work-relief or work-training program

assisted or financed in whole or part by any federal agency or an agency of a state

or political subdivision thereof, by an individual receiving the work relief or work

training; (l) service performed by an individual who is enrolled at a nonprofit or public educational

institution that normally maintains a regular faculty and curriculum and normally

has a regularly organized body of students in attendance at the place where its educational

activities are carried on as a student in a full-time program, taken for credit at

the institution that combines academic instruction with work experience, if the service

is an integral part of such program and the institution has so certified to the employer,

except that this subparagraph shall not apply to service performed in a program established

for or on behalf of an employer or group of employers; (m) service performed in the employ of a hospital, if the service is performed by

a patient of the hospital, or services performed by an inmate of a custodial or penal

institution for any employer; (n) service performed by real estate salespersons for others when the services are

performed for remuneration solely by way of commission; (o) service performed in the employ of a school, college or university if the service

is performed by a student who is enrolled and is regularly attending classes at the

school, college or university; (p) service performed by an individual for a fixed or contract fee officiating at

a sporting event that is conducted by or under the auspices of a nonprofit or governmental

entity if that person is not otherwise an employee of the entity conducting the sporting

event; (q) service performed for a private, for-profit person or entity by an individual

as a product demonstrator or product merchandiser if the service is performed pursuant

to a written contract between that individual and a person or entity whose principal

business is obtaining the services of product demonstrators and product merchandisers

for third parties, for demonstration and merchandising purposes and the individual:

1) is compensated for each job or the compensation is based on factors related to

the work performed; 2) provides the equipment used to perform the service, unless

special equipment is required and provided by the manufacturer through an agency;

3) is responsible for completion of a specific job and for any failure to complete

the job; 4) pays all expenses, and the opportunity for profit or loss rests solely

with the individual; and 5) is responsible for operating costs, fuel, repairs and

motor vehicle insurance. For the purpose of this subparagraph, “ product demonstrator ” means an individual who, on a temporary, part-time basis, demonstrates or gives

away samples of a food or other product as part of an advertising or sales promotion

for the product and who is not otherwise employed directly by the manufacturer, distributor

or retailer, and “ product merchandiser ” means an individual who, on a temporary, part-time basis builds or resets a product

display and who is not otherwise directly employed by the manufacturer, distributor

or retailer; or (r) service performed for a private, for-profit person or entity by an individual

as a landman if substantially all remuneration paid in cash or otherwise for the performance

of the services is directly related to the completion by the individual of the specific

tasks contracted for rather than to the number of hours worked by the individual. For the purposes of this subparagraph, “ landman ” means a land professional who has been engaged primarily in: 1) negotiating for

the acquisition or divestiture of mineral rights; 2) negotiating business agreements

that provide for the exploration for or development of minerals; 3) determining ownership

of minerals through the research of public and private records; and 4) reviewing

the status of title, curing title defects and otherwise reducing title risk associated

with ownership of minerals; managing rights or obligations derived from ownership

of interests and minerals; or utilizing or pooling of interest in minerals; and (13) for the purposes of this subsection, if the services performed during one-half

or more of any pay period by an individual for the person employing the individual

constitute employment, all the services of the individual for the period shall be

deemed to be employment, but, if the services performed during more than one-half

of any such pay period by an individual for the person employing the individual do

not constitute employment, then none of the services of the individual for the period

shall be deemed to be employment. As used in this paragraph, the term “ pay period ” means a period, of not more than thirty-one consecutive days, for which a payment

of remuneration is ordinarily made to the individual by the person employing the individual. This paragraph shall not be applicable with respect to services performed in a pay

period by an individual for the person employing the individual where any of such

service is excepted by Subparagraph (f) of Paragraph (12) of this subsection; G. “ employment office ” means a free public employment office, or branch thereof, operated by this state

or maintained as a part of a state-controlled system of public employment offices; H. “ fund ” means the unemployment compensation fund established by the Unemployment Compensation

Law to which all contributions and payments in lieu of contributions required under

the Unemployment Compensation Law and from which all benefits provided under the Unemployment

Compensation Law shall be paid; I. “ unemployment ” means, with respect to an individual, any week during which the individual performs

no services and with respect to which no wages are payable to the individual and during

which the individual is not engaged in self-employment or receives an award of back

pay for loss of employment. The secretary shall prescribe by rule what constitutes part-time and intermittent

employment, partial employment and the conditions under which individuals engaged

in such employment are eligible for partial unemployment benefits, but no individual

who is otherwise eligible shall be deemed ineligible for benefits solely for the reason

that the individual seeks, applies for or accepts only part-time work, instead of

full-time work, if the part-time work is for at least twenty hours per week; J. “ state ”, when used in reference to any state other than New Mexico, includes, in addition

to the states of the United States, the District of Columbia, the commonwealth of

Puerto Rico and the Virgin Islands; K. “ unemployment compensation administration fund ” means the fund established by Subsection A of Section 51-1-34 NMSA 1978 from which administrative expenses under the Unemployment Compensation Law shall

be paid. “ Employment security department fund ” means the fund established by Subsection B of Section 51-1-34 NMSA 1978 from which certain administrative expenses under the Unemployment Compensation Law

shall be paid; L. “ crew leader ” means a person who: (1) holds a valid certificate of registration as a crew leader or farm labor contractor

under the federal Migrant and Seasonal Agricultural Worker Protection Act; 5 (2) furnishes individuals to perform services in agricultural labor for any other

person; (3) pays, either on the crew leader's own behalf or on behalf of such other person,

the individuals so furnished by the crew leader for service in agricultural labor;

and (4) has not entered into a written agreement with the other person for whom the crew

leader furnishes individuals in agricultural labor that the individuals will be the

employees of the other person; M. “ week ” means such period of seven consecutive days, as the secretary may by rule prescribe. The secretary may by rule prescribe that a week shall be deemed to be “in”, “within”

or “during” the benefit year that includes the greater part of such week; N. “ calendar quarter ” means the period of three consecutive calendar months ending on March 31, June 30,

September 30 or December 31; O. “ insured work ” means services performed for employers who are covered under the Unemployment Compensation

Law; P. “ benefit year ” with respect to an individual means the one-year period beginning with the first

day of the first week of unemployment with respect to which the individual first files

a claim for benefits in accordance with Subsection A of Section 51-1-8 NMSA 1978 and thereafter the one-year period beginning with the first day of the first week

of unemployment with respect to which the individual next files such a claim for benefits

after the termination of the individual's last preceding benefit year; provided that

at the time of filing such a claim the individual has been paid the wage required

under Paragraph (5) of Subsection A of Section 51-1-5 NMSA 1978; Q. “ agricultural labor ” includes all services performed: (1) on a farm, in the employ of a person, in connection with cultivating the soil

or in connection with raising or harvesting an agricultural or horticultural commodity,

including the raising, shearing, feeding, caring for, training and management of livestock,

bees, poultry and fur-bearing animals and wildlife; (2) in the employ of the owner or tenant or other operator of a farm, in connection

with the operation, management, conservation or maintenance of the farm and its tools

and equipment, if the major part of the service is performed on a farm; (3) in connection with the operation or maintenance of ditches, canals, reservoirs

or waterways used exclusively for supplying and storing water for farming purposes

when such ditches, canals, reservoirs or waterways are owned and operated by the farmers

using the water stored or carried therein; and (4) in handling, planting, drying, packing, packaging, processing, freezing, grading,

storing or delivery to storage or to market or to a carrier for transportation to

market any agricultural or horticultural commodity but only if the service is performed

as an incident to ordinary farming operations. The provisions of this paragraph shall not be deemed to be applicable with respect

to service performed in connection with commercial canning or commercial freezing

or in connection with any agricultural or horticultural commodity after its delivery

to a terminal market for distribution for consumption. As used in this subsection, the term “ farm ” includes stock, dairy, poultry, fruit, fur-bearing animal and truck farms, plantations,

ranches, nurseries, greenhouses, ranges and orchards; R. “ payments in lieu of contributions ” means the money payments made into the fund by an employer pursuant to the provisions

of Subsection B of Section 51-1-13 NMSA 1978 or Subsection E of Section 51-1-59 NMSA 1978; S. “ department ” means the workforce solutions department; and T. “ wages ” means all remuneration for services, including commissions and bonuses and the cash

value of all remuneration in any medium other than cash. The reasonable cash value of remuneration in any medium other than cash shall be

established and determined in accordance with rules prescribed by the secretary;

provided that the term “wages” shall not include: (1) subsequent to December 31, 1977, that part of the remuneration in excess of the

base wage as determined by the secretary for each calendar year. The base wage upon which contribution shall be paid during any calendar year shall

be sixty percent of the state's average annual earnings computed by the division by

dividing total wages reported to the division by contributing employers for the second

preceding calendar year before the calendar year the computed base wage becomes effective

by the average annual employment reported by contributing employers for the same period

rounded to the next higher multiple of one hundred dollars ($100); provided that

the base wage so computed for any calendar year shall not be less than seven thousand

dollars ($7,000). Wages paid by an employer to an individual in the employer's employ during any calendar

year in excess of the base wage in effect for that calendar year shall be reported

to the department but shall be exempt from the payment of contributions unless such

wages paid in excess of the base wage become subject to tax under a federal law imposing

a tax against which credit may be taken for contributions required to be paid into

a state unemployment fund; (2) the amount of any payment with respect to services performed after June 30, 1941

to or on behalf of an individual in the employ of an employing unit under a plan or

system established by the employing unit that makes provision for individuals in its

employ generally or for a class or classes of individuals, including any amount paid

by an employing unit for insurance or annuities, or into a fund, to provide for any

payment, on account of: (a) retirement if the payments are made by an employer to or on behalf of an employee

under a simplified employee pension plan that provides for payments by an employer

in addition to the salary or other remuneration normally payable to the employee or

class of employees and does not include any payments that represent deferred compensation

or other reduction of an employee's normal taxable wages or remuneration or any payments

made to a third party on behalf of an employee as part of an agreement of deferred

remuneration; (b) sickness or accident disability if the payments are received under a workers'

compensation or occupational disease disablement law; (c) medical and hospitalization expenses in connection with sickness or accident disability;

or (d) death; provided the individual in its employ has not the option to receive, instead

of provision for the death benefit, any part of such payment, or, if such death benefit

is insured, any part of the premiums or contributions to premiums paid by the individual's

employing unit and has not the right under the provisions of the plan or system or

policy of insurance providing for the death benefit to assign the benefit, or to receive

a cash consideration in lieu of the benefit either upon the individual's withdrawal

from the plan or system providing for the benefit or upon termination of the plan

or system or policy of insurance or of the individual's service with the employing

unit; (3) remuneration for agricultural labor paid in any medium other than cash; (4) a payment made to, or on behalf of, an employee or an employee's beneficiary under

a cafeteria plan within the meaning of Section 125 of the federal Internal Revenue Code of 1986; (5) a payment made, or benefit furnished to or for the benefit of an employee if at

the time of the payment or such furnishing it is reasonable to believe that the employee

will be able to exclude the payment or benefit from income under Section 129 of the federal Internal Revenue Code of 1986; (6) a payment made by an employer to a survivor or the estate of a former employee

after the calendar year in which the employee died; (7) a payment made to, or on behalf of, an employee or the employee's beneficiary

under an arrangement to which Section 408(p) of the federal Internal Revenue Code of 1986 applies, other than any elective contributions under Paragraph (2)(A)(i) of that

section; (8) a payment made to or for the benefit of an employee if at the time of the payment

it is reasonable to believe that the employee will be able to exclude the payment

from income under Section 106 of the federal Internal Revenue Code of 1986; or (9) the value of any meals or lodging furnished by or on behalf of the employer if

at the time the benefit is provided it is reasonable to believe that the employee

will be able to exclude such items from income under Section 119 of the federal Internal Revenue Code of 1986 . 1

26 U.S.C.A. § 3301 et seq. 2

8 U.S.C.A. § 1101(a)(15)(H). 3

8 U.S.C.A. § 1184(c). 4

26 U.S.C.A. § 3306(c)(8). 5

29 U.S.C.A. § 1801 et seq.