New Mexico § 60-13-3.1 - Employer and employee relationship; independent contractor; improper reporting; penalty; license sanctions

§ 60-13-3.1. Employer and employee relationship; independent contractor; improper reporting; penalty; license sanctions

A. Except as provided in Subsection D of this section, for purposes of the employer

and employee relationship within those construction industries subject to the Construction

Industries Licensing Act, a contractor who is an employer shall consider a person

providing labor or services to the contractor for compensation to be an employee of

the contractor and not an independent contractor unless the following standards indicative

of an independent contractor are met: (1) the person providing labor or services is free from direction and control over

the means and manner of providing the labor or services, subject only to the right

of the person for whom the labor or services are provided to specify the desired results; (2) the person providing labor or services is responsible for obtaining business registrations

or licenses required by state law or local ordinance for the person to provide the

labor or services; (3) the person providing labor or services furnishes the tools or equipment necessary

to provide the labor or services; (4) the person providing labor or services has the authority to hire and fire employees

to perform the labor or services; (5) payment for labor or services is made upon completion of the performance of specific

portions of a project or is made on the basis of a periodic retainer; and (6) the person providing labor or services represents to the public that the labor

or services are to be provided by an independently established business. A person is engaged in an independently established business when four or more of

the following circumstances exist: (a) labor or services are primarily performed at a location separate from the person's

residence or in a specific portion of the residence that is set aside for performing

labor or services; (b) commercial advertising or business cards are purchased by the person, or the person

is a member of a trade or professional association; (c) telephone or email listings used for the labor or services are different from

the person's personal listings; (d) labor or services are performed only pursuant to a written contract; (e) labor or services are performed for two or more persons within a period of one

year; or (f) the person assumes financial responsibility for errors and omissions in labor

or services as evidenced by insurance, performance bonds and warranties relating to

the labor or services being provided. B. The labor department shall administer and enforce the provisions of Subsection

A of this section, including coordination with the construction industries division

of the regulation and licensing department. C. A contractor who intentionally and willfully reports to a state agency or other

client that an employee is an independent contractor or who, for the purposes of a

program administered by a state agency, intentionally and willfully treats or otherwise

lists an employee as an independent contractor when the employee's status does not

meet the standards indicative of an independent contractor as identified in Subsection

A of this section is guilty of a misdemeanor and shall be punished by a fine of not

more than five thousand dollars ($5,000) or by imprisonment for a definite term not

to exceed six months or both. For the purposes of this subsection, “ state agency ” means an administration, board, commission, department or division of this state. D. Conviction of a contractor for violating Subsection C of this section shall be

grounds for the construction industries commission to take action to suspend, revoke

or refuse to renew a license issued to that contractor by the construction industries

division of the regulation and licensing department. E. Subsections A, B and C of this section shall not be construed to affect or apply

to a common law or statutory action providing for recovery in torts and shall not

be construed to affect or change the common law interpretation of independent contractor

status as it relates to tort liability.