N.M. Admin. Code § 11.3.300.319

Current through Register Vol. 35, No. 20, October 22, 2024

Section 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.

N.M. Admin. Code § 11.3.300.319

7-15-98; 11.3.300.319 NMAC - Rn & A, 11 NMAC 3.300.319, 01-01-2003; A, 11-15-2012, Adopted by New Mexico Register, Volume XXIX, Issue 20, October 30, 2018, eff. 11/1/2018