New Mexico § 51-1-8 - Claims for benefits

§ 51-1-8. Claims for benefits

A. Claims for benefits shall be made in accordance with such regulations as the secretary

may prescribe. Each employer shall post and maintain printed notices, in places readily accessible

to employees, concerning their rights to file claims for unemployment benefits upon

termination of their employment. Such notices shall be supplied by the division to each employer without cost to

the employer. B. A representative designated by the secretary as a claims examiner shall promptly

examine the application and each weekly claim and, on the basis of the facts found,

shall determine whether the claimant is unemployed, the week with respect to which

benefits shall commence, the weekly benefit amount payable, the maximum duration of

benefits, whether the claimant is eligible for benefits pursuant to Section 51-1-5 NMSA 1978 and whether the claimant shall be disqualified pursuant to Section 51-1-7 NMSA 1978 . With the approval of the secretary, the claims examiner may refer, without determination,

claims or any specified issues involved therein that raise complex questions of fact

or law to a hearing officer for the division for a fair hearing and decision in accordance

with the procedure described in Subsection D of this section. The claims examiner shall promptly notify the claimant and any other interested

party of the determination and the reasons therefor. Unless the claimant or interested party, within fifteen calendar days after the

date of notification or mailing of the determination, files an appeal from the determination,

the determination shall be the final decision of the division; provided that the

claims examiner may reconsider a nonmonetary determination if additional information

not previously available is provided or obtained or whenever the claims examiner finds

an error in the application of law has occurred, but no redetermination shall be made

more than twenty days from the date of the initial nonmonetary determination. Notice of a nonmonetary redetermination shall be given to all interested parties

and shall be subject to appeal in the same manner as the original nonmonetary determination. If an appeal is pending at the time a redetermination is issued, the appeal, unless

withdrawn, shall be treated as an appeal from the redetermination. C. In the case of a claim for waiting period credit or benefits, “ interested party ”, for purposes of determinations and adjudication proceedings and notices thereof,

means: (1) in the event of an issue concerning a separation from work for reasons other than

lack of work, the claimant's most recent employer or most recent employing unit; (2) in the event of an issue concerning a separation from work for lack of work, the

employer or employing unit from whom the claimant separated for reasons other than

lack of work if the claimant has not 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; or (3) in all other cases involving the allowance or disallowance of a claim, the secretary,

the claimant and any employing unit directly involved in the facts at issue. D. Upon appeal by any party, a hearing officer designated by the secretary shall afford

the parties reasonable opportunity for a fair hearing to be held de novo, and the

hearing officer shall issue findings of fact and a decision that affirms, reverses

or modifies the determination of the claims examiner or tax representative on the

facts or the law, based upon the evidence introduced at such hearing, including the

documents and statements in the claim or tax records of the division. All hearings shall be held in accordance with regulations of the secretary and decisions

issued promptly in accordance with time lapse standards promulgated by the secretary

of the United States department of labor. The parties shall be duly notified of the decision, together with the reasons therefor,

which shall be deemed to be the final decision of the department, unless within fifteen

days after the date of notification or mailing of the decision further appeal is initiated

pursuant to Subsection H of this section. E. Except with the consent of the parties, no hearing officer or members of the board

of review, established in Subsection F of this section, or secretary shall sit in

any administrative or adjudicatory proceeding in which: (1) either of the parties is related to the hearing officer, member of the board of

review or secretary by affinity or consanguinity within the degree of first cousin; (2) the hearing officer, member of the board of review or secretary was counsel for

either party in that action; or (3) the hearing officer, member of the board of review or secretary has an interest

that would prejudice the rendering of an impartial decision. The secretary, any member of the board of review or appeal tribunal hearing officer

shall withdraw from any proceeding in which the hearing officer, member of the board

of review or secretary cannot accord a fair and impartial hearing or when a reasonable

person would seriously doubt whether the hearing officer, board member or secretary

could be fair and impartial. Any party may request a disqualification of any appeal tribunal hearing officer

or board of review member by filing an affidavit with the board of review or appeal

tribunal promptly upon discovery of the alleged grounds for disqualification, stating

with particularity the grounds upon which it is claimed that the person cannot be

fair and impartial. The disqualification shall be mandatory if sufficient factual basis is set forth

in the affidavit of disqualification. If a member of the board of review is disqualified or withdraws from any proceeding,

the remaining members of the board of review may appoint an appeal tribunal hearing

officer to sit on the board of review for the proceeding involved. F. There is established within the department, for the purpose of providing higher

level administrative appeal and review of determinations of a claims examiner or decisions

issued by a hearing officer pursuant to Subsection B or D of this section, a “board

of review” consisting of three members. Two members shall be appointed by the governor with the consent of the senate. The members so appointed shall hold office at the pleasure of the governor for terms

of four years. One member appointed by the governor shall be a person who, on account of previous

vocation, employment or affiliation, can be classed as a representative of employers,

and the other member appointed by the governor shall be a person who, on account of

previous vocation, employment or affiliation, can be classed as a representative of

employees. The third member shall be an employee of the department appointed by the secretary

who shall serve as chair of the board. Either member of the board of review appointed by the governor who has missed two

consecutive meetings of the board may be removed from the board by the governor. Actions of the board shall be taken by majority vote. If a vacancy on the board in a position appointed by the governor occurs between

sessions of the legislature, the position shall be filled by the governor until the

next regular legislative session. The board shall meet at the call of the secretary. Members of the board appointed by the governor shall be paid per diem and mileage

in accordance with the Per Diem and Mileage Act [ 10-8-1 to 10-8-8 NMSA 1978 ] for necessary travel to attend regularly scheduled meetings of the board of review

for the purpose of conducting the board's appellate and review duties. G. The board of review shall hear and review all cases appealed in accordance with

Subsection H of this section. The board of review may affirm, reverse or modify the decision of the hearing officer

or remand any matter to the claims examiner, tax representative or hearing officer

for further proceedings. Each member appointed by the governor shall be compensated at the rate of fifteen

dollars ($15.00) for each case reviewed up to a maximum compensation of twelve thousand

dollars ($12,000) in any one fiscal year. H. Any party aggrieved by a final decision of a hearing officer may file, in accordance

with regulations prescribed by the secretary, an application for appeal and review

of the decision with the secretary. The secretary shall review the application and shall, within fifteen days after

receipt of the application, either affirm the decision of the hearing officer, reverse

the decision of the hearing officer, modify the decision of the hearing officer, remand

the matter to the hearing officer, tax representative or claims examiner for an additional

hearing or refer the decision to the board of review for further review and decision

on the merits of the appeal. If the secretary affirms, reverses or modifies the decision of the hearing officer,

that decision shall be the final administrative decision of the department and any

appeal therefrom shall be taken to the district court in accordance with the provisions

of Subsections M and N of this section. If the secretary remands a matter to a hearing officer, tax representative or claims

examiner for an additional hearing, judicial review shall be permitted only after

issuance of a final administrative decision. If the secretary refers the decision of the hearing officer to the board of review

for further review, the board's decision on the merits of the appeal shall be the

final administrative decision of the department, which may be appealed to the district

court in accordance with the provisions of Subsections M and N of this section. If the secretary takes no action within fifteen days of receipt of the application

for appeal and review, the decision shall be promptly scheduled for review by the

board of review as though it had been referred by the secretary. The secretary may request the board of review to review a decision of a hearing

officer that the secretary believes to be inconsistent with the law or with applicable

rules of interpretation or that is not supported by the evidence, and the board of

review shall grant the request if it is filed within fifteen days of the issuance

of the decision of the hearing officer. The secretary may also direct that any pending determination or adjudicatory proceeding

be removed to the board of review for a final decision. If the board of review holds a hearing on any matter, the hearing shall be conducted

by a quorum of the board of review in accordance with regulations prescribed by the

secretary for hearing appeals. The board of review shall promptly notify the interested parties of its findings

of fact and decision. A decision of the board of review on any disputed matter reviewed and decided by

it shall be based upon the law and the lawful rules of interpretation issued by the

secretary, and it shall be the final administrative decision of the department, except

in cases of remand. If the board of review remands a matter to a hearing officer, claims examiner or

tax representative, judicial review shall be permitted only after issuance of a final

administrative decision. I. Notwithstanding any other provision of this section granting any party the right

to appeal, benefits shall be paid promptly in accordance with a determination or a

decision of a claims examiner, hearing officer, secretary, board of review or reviewing

court, regardless of the pendency of the period to file an appeal or petition for

judicial review that is provided with respect thereto in Subsection D or M of this

section or the pendency of any such filing or petition until such determination or

decision has been modified or reversed by a subsequent decision. The provisions of this subsection shall apply to all claims for benefits pending

on the date of its enactment. J. If a determination or decision allowing benefits is finally modified or reversed,

the appropriate contributing employer will be relieved of benefit charges in accordance

with Subsection A of Section 51-1-11 NMSA 1978 . K. The manner in which disputed claims shall be presented, the reports thereon required

from the claimant and from employers and the conduct of hearings and appeals shall

be in accordance with rules prescribed by the secretary for determining the rights

of the parties, whether or not the rules conform to common law or statutory rules

of evidence and other technical rules of procedure. A hearing officer or the board of review may refer to the secretary for interpretation

any question of controlling legal significance, and the secretary shall issue a declaratory

interpretation, which shall be binding upon the decision of the hearing officer and

the board of review. A full and complete record shall be kept of all proceedings in connection with a

disputed claim. All testimony at any hearing upon a disputed claim shall be recorded but need not

be transcribed unless the disputed claim is appealed to the district court. L. Witnesses subpoenaed pursuant to this section shall be allowed fees at a rate fixed

by the secretary. Such fees and all administrative expenses of proceedings involving disputed claims

shall be deemed a part of the expense of administering the Unemployment Compensation

Law. M. Any determination or decision of a claims examiner or hearing officer or by a representative

of the tax section of the department in the absence of an appeal therefrom as provided

by this section shall become final fifteen days after the date of notification or

mailing thereof, and judicial review thereof shall be permitted only after any party

claiming to be aggrieved thereby has exhausted the remedies as provided in Subsection

H of this section. The division and any employer or claimant who is affected by the decision shall

be joined as a party in any judicial action involving the decision. All parties shall be served with an endorsed copy of the petition within thirty

days from the date of filing and an endorsed copy of the order granting the petition

within fifteen days from entry of the order. Service on the department shall be made on the secretary or the secretary's designated

legal representative either by mail with accompanying certification of service or

by personal service. The division may be represented in a judicial action by an attorney employed by

the department or, when requested by the secretary, by the attorney general or any

district attorney. N. The final decision of the secretary or board of review upon any disputed matter

may be reviewed both upon the law, including the lawful rules of interpretation issued

by the secretary, and the facts by the district court of the county wherein the person

seeking the review resides upon certiorari, unless it is determined by the district

court where the petition is filed that, as a matter of equity and due process, venue

should be in a different county. For the purpose of the review, the division shall return on certiorari the reports

and all of the evidence heard by it on the reports and all the papers and documents

in its files affecting the matters and things involved in such certiorari. The district court shall render its judgment after hearing, and either the department

or any other party affected may appeal from the judgment to the court of appeals in

accordance with the rules of appellate procedure. Certiorari shall not be granted unless applied for within thirty days from the date

of the final decision of the secretary or board of review. Certiorari shall be heard in a summary manner and shall be given precedence over

all other civil cases except cases arising under the Workers' Compensation Act. It is not necessary in any proceedings before the division to enter exceptions to

the rulings, and no bond shall be required in obtaining certiorari from the district

court, but certiorari shall be granted as a matter of right to the party applying

therefor.