2023 New Mexico Statutes › Chapter 51 - Unemployment Compensation › Article 1 - Unemployment Compensation › Section 51-1-7 - Disqualification for benefits.

A. An individual shall be disqualified for and shall not be eligible to receive benefits:
(1) if it is determined by the division that the individual left employment voluntarily without good cause in connection with the employment. No individual shall receive benefits until the division has contacted the former employer and determined whether the individual left the employment voluntarily; provided, however, that a person shall not be denied benefits under this paragraph:
(a) solely on the basis of pregnancy or the termination of pregnancy;
(b) because of domestic abuse evidenced by medical documentation, legal documentation or a sworn statement from the claimant; or
(c) if the person voluntarily left work to relocate because of a spouse, who is in the military service of the United States or the New Mexico national guard, receiving permanent change of station orders, activation orders or unit deployment orders;
(2) if it is determined by the division that the individual has been discharged for misconduct connected with the individual's employment; or
(3) if it is determined by the division that the individual has failed without good cause either to apply for available, suitable work when so directed or referred by the division or to accept suitable work when offered.
B. In determining whether or not any work is suitable for an individual pursuant to Paragraph (3) of Subsection A of this section, the division shall consider the degree of risk involved to the individual's health, safety and morals, the individual's physical fitness, prior training, approved training, experience, prior earnings, length of unemployment and prospects for securing local work in the individual's customary occupation and the distance of available work from the individual's residence. Notwithstanding any other provisions of the Unemployment Compensation Law, no work shall be deemed suitable and benefits shall not be denied under the Unemployment Compensation Law to any otherwise eligible individual for refusing to accept new work under any of the following conditions:
(1) if the position offered is vacant due directly to a strike, lockout or other labor dispute;
(2) if the wages, hours or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality; or
(3) if, as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organizations.
C. An individual shall be disqualified for, and shall not be eligible to receive, benefits for any week with respect to which the division finds that the individual's unemployment is due to a labor dispute at the factory, establishment or other premises at which the individual is or was last employed; provided that this subsection shall not apply if it is shown to the satisfaction of the division that:
(1) the individual is not participating in or directly interested in the labor dispute; and
(2) the individual does not belong to a grade or class of workers of which, immediately before the commencement of the labor dispute, there were members employed at the premises at which the labor dispute occurs, any of whom are participating in or directly interested in the dispute; provided that if in any case separate branches of work that are commonly conducted in separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall, for the purposes of this subsection, be deemed to be a separate factory, establishment or other premises.
D. An individual shall be disqualified for, and shall not be eligible to receive, benefits for any week with respect to which, or a part of which, the individual has received or is seeking, through any agency other than the division, unemployment benefits under an unemployment compensation law of another state or of the United States; provided that if the appropriate agency of such other state or of the United States finally determines that the individual is not entitled to such unemployment benefits, this disqualification shall not apply.
E. A disqualification pursuant to Paragraph (1) or (2) of Subsection A of this section shall continue for the duration of the individual's unemployment and until the individual has earned wages in bona fide employment other than self-employment, as provided by rule of the secretary, in an amount equivalent to five times the individual's weekly benefit otherwise payable. A disqualification pursuant to Paragraph (3) of Subsection A of this section shall include the week the failure occurred and shall continue for the duration of the individual's unemployment and until the individual has earned wages in bona fide employment other than self-employment, as provided by rule of the secretary, in an amount equivalent to five times the individual's weekly benefit amount otherwise payable; provided that no more than one such disqualification shall be imposed upon an individual for failure to apply for or accept the same position, or a similar position, with the same employer, except upon a determination by the division of disqualification pursuant to Subsection C of this section.
F. As used in this section:
(1) "domestic abuse" means that term as defined in Section 40-13-2 NMSA 1978; and
(2) "employment" means employment by the individual's last employer as defined by rules of the secretary.
History:
Laws 1936 (S.S.), ch. 1, § 5; 1939, ch. 175, § 3; 1941 Comp., § 57-805; Laws 1941, ch. 205, § 3; 1943, ch. 103, § 3; 1953 Comp., § 59-9-5; Laws 1953, ch. 121, § 3; 1975, ch. 351, § 1; 1977, ch. 321, § 3; 1979, ch. 280, § 14; 1981, ch. 354, § 3; 1983, ch. 199, § 3; 1991, ch. 122, § 4; 2003, ch. 47, § 3; 2003, ch. 47, § 10; 2005, ch. 3, § 3; 2005, ch. 255, § 1; 2011, ch. 184, § 3.
ANNOTATIONS
Repeals and reenactments.
— Laws 2003, ch. 47, § 10 repealed Laws 1969, ch. 213, § 5 as amended by Laws 2003, ch. 47, § 3 and enacted a new 51-1-7 NMSA 1978. Laws 2003, ch. 47, § 15 provided that the effective date of Laws 2003, ch. 47, §§ 8 through 12 was the earliest of the following: 1) June 30, 2007; or 2) the date that the unemployment compensation fund is less than three and three-fourths percent of total payrolls pursuant to the computation provided in Paragraph (1) of Subsection I of 51-1-11 NMSA 1978.
Laws 2007, ch. 137, § 6 repealed Laws 2005, ch. 3, § 8 effective July 1, 2007. Laws 2005, ch. 3, § 8 would have repealed and reenacted this section, however it was repealed prior to taking effect.
The 2011 amendment,
effective July 1, 2011, in Subsection B, eliminated full-time students from potential qualification for unemployment benefits.
Applicability.
— Laws 2011, ch. 184, § 6 provided that Laws 2011, ch. 184, § 3 apply to benefit years beginning on or after July 1, 2011.
The 2005 amendment,
effective June 17, 2005, added Subsection A(1)(c).
The 2003 amendment,
effective March 19, 2003, rewrote the section and added Subsections E and F.
Laws 2003, ch. 47, § 15 provided that the effective date of Laws 2003, ch. 47, §§ 8 through 12 was the earliest of the following: 1) June 30, 2007; or 2) the date that the unemployment compensation fund is less than three and three-fourths percent of total payrolls pursuant to the computation provided in Paragraph (1) of Subsection I of 51-1-11 NMSA 1978.
The compiler was informed that the event described in Laws 2003, ch, 47, § 15 occurred prior to the enactment of the 2005 amendment.
The 1991 amendment,
effective April 3, 1991, substituted "division" for "department" throughout the section and "secretary" for "department" in Subsections A, B and C; in both Subsections A and B, added the first full sentences and deleted "insured work or" following "earned wages in" in the final sentence; and deleted "insured work or such" following "earned wages in" in the first full sentence in Subsection C.
I. GENERAL CONSIDERATION
Supreme court is clearly committed to liberal interpretation
of the Unemployment Compensation Act, so as to provide sustenance to those who are unemployed through no fault of their own and who are willing and ready to work if given the opportunity.
Wilson v. Employment Sec. Comm'n
, 1963-NMSC-085, 74 N.M. 3, 389 P.2d 855.
No right of reconsideration after decision rendered.
— After the commission (now division) has rendered its decision it has exercised the express power conferred by the act upon it. No right of reconsideration remains.
Kennecott Copper Corp. v. Employment Sec. Comm'n
, 1967-NMSC-182, 78 N.M. 398, 432 P.2d 109.
Deputy limited to making and submitting findings to division.
— The power of decision, under former section dealing with payment of benefits in labor dispute situations, is in the commission (now division), and the deputy's function is limited to making and submitting his findings to it.
Kennecott Copper Corp. v. Employment Sec. Comm'n
, 1967-NMSC-182, 78 N.M. 398, 432 P.2d 109.
Division quasi-judicial in nature.
— The express power granted the commission (now division) by the legislature is quasi-judicial in its nature and authorizes the commission (division) to decide issues submitted under the labor dispute provisions of this section.
Kennecott Copper Corp. v. Employment Sec. Comm'n
, 1967-NMSC-182, 78 N.M. 398, 432 P.2d 109.
The term "employment", as used in Subsection A.
— Because the determination of benefits rests upon a claimant's base-period employment, the term "employment", as used in Subsection A (now A(1)), logically can refer only to employment during which base-period wages were earned.
Lopez v. Employment Sec. Div.
, 1990-NMSC-102, 111 N.M 104, 802 P.2d 9.
One-day absence from temporary work assignment.
— Where claimant had qualified for benefits using the base-period employment with the job from which he had been laid off and remained eligible to receive benefits so long as he continued to satisfy conditions of eligibility each week, which included reporting any wages earned through temporary work assignments, claimant's one-day absence from a temporary work assignment did not provide a legal basis for disqualification from benefits under Subsection A (now A(1)).
Bradley v. New Mexico Dep't of Labor Emp't Sec. Div.
, 1991-NMSC-024, 111 N.M. 524, 807 P.2d 222.
Standard on review by trial court.
— The standard to be applied by a trial court in reviewing a decision of the division is, if the court determines that the findings are supported by substantial evidence, those findings are binding on the district court. However, should the district court determine that they are not so supported, the district court must make its own findings from the evidence presented.
Donovan v. New Mexico Emp't Sec. Dep't
, 1982-NMSC-008, 97 N.M. 293, 639 P.2d 580.
II. VOLUNTARY TERMINATION
"Voluntary" requirement
of the Unemployment Compensation Law is clear and unambiguous, and should be accorded its ordinary meaning.
LeMon v. Employment Sec. Comm'n
, 1976-NMSC-064, 89 N.M. 549, 555 P.2d 372.
Leaving employment to attend school deemed voluntary.
— Leaving one's employment to attend school is generally regarded to be a voluntary leaving without good cause related to the employment.
Phelps Dodge Corp. v. New Mexico Emp't Sec. Dep't
, 1983-NMSC-068, 100 N.M. 246, 669 P.2d 255.
Voluntary leaving disqualification not applicable to strikers.
— The terms "leaving work" or "left his work" as used in unemployment compensation laws refer only to a severance of the employment relation and do not include a temporary interruption in the performance of services. Strikers who have temporarily interrupted their employment because of a labor dispute have not been deemed to have terminated the employment relationship and the voluntary leaving disqualification has no application to them.
Albuquerque-Phoenix Express, Inc. v. Employment Sec. Comm'n
, 1975-NMSC-069, 88 N.M. 596, 544 P.2d 1161.
Where claimant was discharged pursuant to mandatory retirement plan,
it was held he did not leave his employment on a voluntary basis, and was entitled to the benefits of the unemployment compensation laws, and, furthermore, the employer cannot be relieved of the charges on its experience rating account.
Duval Corp. v. Employment Sec. Comm'n
, 1972-NMSC-007, 83 N.M. 447, 493 P.2d 413.
Voluntary abandonment of employment not established.
— Since the employee, suffering from a debilitating illness, had taken steps to remain employed by applying for transfers, workers' compensation, and disability, she did not abandon her employment as a matter of law.
Fitzhugh v. New Mexico Dep't of Labor
, 1996-NMSC-044, 122 N.M. 173, 922 P.2d 555.
III. GOOD FAITH
Good cause is an objective measure
of real, substantial and reasonable circumstances which would cause the average able and qualified worker to quit gainful employment.
Molenda v. Thomsen
, 1989-NMSC-022, 108 N.M. 380, 772 P.2d 1303.
Good cause includes the concept of good faith;
a genuine desire to work and be self-supporting absent fraud.
Molenda v. Thomsen
, 108 N.M. 380, 1989-NMSC-022, 772 P.2d 1303.
"Good cause", proper notice requirement met.
— Since the requisite causal connection between claimant's secretarial duties at work and her lower-back physical condition was established through direct uncontroverted medical testimony, and it was undisputed that claimant had asked for, and been categorically denied, any reassignment before tendering her resignation, "the good cause" demands of this section were met and her disqualification for unemployment benefits was improper.
Kramer v. New Mexico Emp't Sec. Div.
, 1992-NMSC-071, 114 N.M. 714, 845 P.2d 808.
Failure to pay regularly as reason for quitting.
— When an employer consistently fails to provide paychecks on established paydays to his or her employee, the employee has good cause to voluntarily quit employment.
Randolph v. New Mexico Emp't Sec. Dep't
, 1989-NMSC-031, 108 N.M. 441, 774 P.2d 435.
Religious harassment.
— Employee who voluntarily terminated her employment was not subjected to unsuitable work conditions rising to the level of religious harassment, where she had previously worked for her employer, who conducted daily Bible study classes, and she was aware of the religious beliefs of her employer and how those religious beliefs affected the work environment.
Randolph v. New Mexico Emp't Sec. Dep't
, 1989-NMSC-031, 108 N.M. 441, 774 P.2d 435.
Reduced hours and long commute are "personal" reasons for termination.
— Reduced hours and a commute to the job that the worker considers excessive are "personal" reasons, and not "good cause" for termination under Subsection A (now A(1)).
Begay v. New Mexico Emp't Sec. Dep't
, 1983-NMSC-106, 100 N.M. 529, 673 P.2d 506.
Circumstances leaving no alternative to leaving employment.
— Good cause is established when an individual faces compelling and necessitous circumstances of such magnitude that there is no alternative to leaving gainful employment.
Molenda v. Thomsen
, 108 N.M. 380, 1989-NMSC-022, 772 P.2d 1303.
Employee's circumstances were not so compelling and necessitous that she had no alternative to quitting her job as a legal secretary, where she voluntarily quit work immediately after her employer reprimanded her in a loud voice and she did not attempt to resolve the problem with him prior to quitting, although he had been receptive to her past expressed concerns and demonstrated a willingness to correct any problems.
Molenda v. Thomsen
, 1989-NMSC-022, 108 N.M. 380, 772 P.2d 1303.
IV. MISCONDUCT
Misconduct is conduct evincing such willful or wanton disregard
of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not misconduct.
Mitchell v. Lovington Good Samaritan Ctr., Inc.
, 1976-NMSC-071, 89 N.M. 575, 555 P.2d 696;
Donovan v. N.M. Emp't Sec. Dep't
, 1982-NMSC-008, 97 N.M. 293, 639 P.2d 580.
Disqualifying misconduct.
— To be disqualifying, misconduct must evince a willful or wanton disregard for the employer's interests and must significantly infringe upon legitimate employer expectations.
Otero v. New Mexico Emp't Sec. Div.
, 1990-NMSC-007, 109 N.M. 412, 785 P.2d 1031.
"Misconduct" is limited to conduct
in which employees bring about their own unemployment by such callousness and deliberate or wanton misbehavior that they have given up any reasonable expectation of receiving unemployment benefits.
Fitzhugh v. New Mexico Dep't of Labor
, 1996-NMSC-044, 122 N.M. 173, 922 P.2d 555.
Total of separate acts may be misconduct.
— Although each separate incident may not be sufficient in itself to constitute misconduct, taken in totality conduct may deviate sufficiently to classify it as misconduct. Donovan v. New Mexico Emp't Sec. Dep't, 1982-NMSC-008, 97 N.M. 293, 639 P.2d 580.
Termination for single incident following prior warnings.
— Termination for a series of incidents which, taken together, may constitute "misconduct" is distinguishable from termination for a single incident following one or more corrective action notices. In the latter event, the "last straw" which leads to termination must demonstrate a willful or wanton disregard for the employer's interests for unemployment benefits to be denied.
Rodman v. New Mexico Emp't Sec. Dep't
, 1988-NMSC-089, 107 N.M. 758, 764 P.2d 1316.
The "totality of circumstances" is relevant in contexts other than discharge after the accumulation of a series of minor incidents. The "totality of circumstances," such as provided by the employee's past conduct and previous reprimands, may also be used to evaluate whether the employee acted with willful or wanton disregard of the employer's interests on the occasion (i.e., the "last straw") that precipitated his or her termination.
Rodman v. New Mexico Emp't Sec. Dep't
, 1988-NMSC-089, 107 N.M. 758, 764 P.2d 1316.
Determination of misconduct not dependent on proof admissible in criminal trial.
— Although the same act constituting grounds of misconduct on the job may also be a criminal act, determination of misconduct in a benefits hearing does not depend upon proof admissible in a criminal trial.
Warren v. Employment Sec. Dep't
, 1986-NMSC-061, 104 N.M. 518, 724 P.2d 227.
For unemployment compensation purposes, no distinction between "suspension" and "discharge" for misconduct.
— For the purposes of unemployment compensation, there is no distinction between "discharge for misconduct" and "suspension without pay for misconduct" since the employee is performing no services and no wages are payable to him, and therefore he is unemployed under the definition of "unemployment" in Section 51-1-42 I NMSA 1978.
Warren v. Employment Sec. Dep't
, 1986-NMSC-061, 104 N.M. 518, 724 P.2d 227.
Chronic absenteeism may be "misconduct".
— Persistent or chronic absenteeism, at least where the absences are without notice or excuse, and are continued in the face of warnings by the employer, constitutes willful "misconduct" within Subsection B (now A(2)).
Chavez v. Employment Sec. Comm'n
, 1982-NMSC-077, 98 N.M. 462, 649 P.2d 1375.
Discharge for absenteeism must be preceded by warnings.
— Any discharge based on inadequate excuses for missing work must be preceded by an adequate warning by the employer or his authorized representative that such behavior will not be tolerated.
Chavez v. Employment Sec. Comm'n
, 1982-NMSC-077, 98 N.M. 462, 649 P.2d 1375.
Violation of rule on reporting absence not misconduct.
— The employee's violation of a company policy that required her to notify her employer on a daily basis of her absence from work was not misconduct sufficient to warrant denial of unemployment benefits.
Fitzhugh v. New Mexico Dep't of Labor
, 1996-NMSC-044, 122 N.M. 173, 922 P.2d 555.
Refusal to redye tinted hair held not misconduct.
— Fast-food restaurant employee's refusal to redye her purple-tinted hair did not rise to the level of misconduct, where there was no evidence that the color of her hair significantly affected business, and the restaurant had received no customer complaints regarding the color of her hair.
It's Burger Time, Inc. v. New Mexico Dep't of Labor Emp't Sec. Dep't
, 1989-NMSC-008, 108 N.M. 175, 769 P.2d 88.
Substantial evidence supported denial of benefits for misconduct.
—
Warren v. Employment Sec. Dep't
, 1986-NMSC-061, 104 N.M. 518, 724 P.2d 227.
Substantial evidence to support denial of benefits for misconduct.
— Where employee was dismissed for presence of alcohol in a urine test, but the employer presented no evidence regarding the testing and collection procedures, and there was no corroborating evidence of intoxication, employee was not dismissed for good cause and was eligible to receive benefits.
Mississippi Potash, Inc. v. Lemon
, 2003-NMCA-014, 133 N.M. 128, 61 P.3d 837.
Discharge for misconduct determination supported by substantial evidence.
— A discharged village employee who had worked as an independent agent of the state department of motor vehicles was properly disqualified from receiving unemployment compensation benefits where evidence clearly showed that the employee had altered paperwork and collected money from customers in excess of that shown owing on altered documents sent to the department of motor vehicles.
Hinojosa v. State ex rel. Emp't Sec. Dep't
, 1986-NMCA-118, 105 N.M. 212, 730 P.2d 1194.
There was substantial evidence to support a finding of misconduct in failing to report for overtime work at 4:30 a.m., where, although there was testimony from the discharged employees that they were confused about the overtime issue, there was also testimony from the night-shift supervisor that his orders directing the employees to report were explicit and not confusing.
Trujillo v. Employment Sec. Dep't
, 1987-NMCA-008, 105 N.M. 467, 734 P.2d 245.
Claimant's conduct in entering his employer's store at 3:26 a.m. constituted a willful and wanton violation of a reasonable and known rule prohibiting managerial employees from opening or closing the store unaccompanied by another employee, and claimant's discharge for such conduct disqualified him from receiving benefits.
Sanchez v. New Mexico Dep't of Labor, Emp't Sec. Div.
, 1990-NMSC-016, 109 N.M. 447, 786 P.2d 674.
Unsatisfactory job performance.
— In order to deny benefits in cases involving only unsatisfactory job performance, an employer must demonstrate strict compliance with its progressive discipline policies to establish willful misconduct.
Chicharello v. Employment Sec. Div.
, 1996-NMSC-077, 122 N.M. 635, 930 P.2d 170.
Misconduct held insufficient to deny benefits.
— One incident of an office clerk's refusing to wear a smock while assisting store cashiers is not sufficient "misconduct" to deny benefits under Subsection B (now A(2)).
Alonzo v. New Mexico Emp't Sec. Dep't
, 1984-NMSC-099, 101 N.M. 770, 689 P.2d 286.
V. AVAILABILITY
Prospective employee who is unable to provide himself with transportation to work,
even though it be through no fault of his own, is not available for work within the meaning of the statute.
Moya v. Employment Sec. Comm'n
, 1969-NMSC-022, 80 N.M. 39, 450 P.2d 925.
Refusal of insurance carrier to provide insurance.
— Claimant was not disqualified from receiving benefits where the sole reason for his termination was the refusal of the employer's insurance carrier to provide insurance, and not claimant's misrepresentations of his driving record on his application for employment.
Otero v. New Mexico Emp't Sec. Div.
, 1990-NMSC-007, 109 N.M. 412, 785 P.2d 1031.
One who restricts willingness to accept employment not available.
— The claimant has restricted his work to daytime employment, regardless of whether available work required that he report for work later in the day. One who so restricts his willingness to accept employment has failed to establish that he is "available for work" within the meaning of this section.
Moya v. Employment Sec. Comm'n
, 1969-NMSC-022, 80 N.M. 39, 450 P.2d 925.
Availability.
— Where the employee quit a job as a grocery clerk to accompany the employee's spouse, who had been laid off from the spouse's job, to a small rural community where they owned property; the rural community had only one grocery store which hired one clerk; there was another grocery store in a rural community twelve miles distant; and the employee applied regularly at both grocery stores, the employee had not removed the employee from the labor market and was not disqualified from receiving unemployment compensation benefits.
Parsons v. Employment Sec. Comm'n
, 1963-NMSC-007, 71 N.M. 405, 379 P.2d 57.
VI. LABOR DISPUTES
Disqualification if labor dispute causes unemployment.
— The question of whether an employee qualifies for unemployment benefits or falls within the disqualifying labor dispute provision of Subsection D (now C) requires not only a determination that a labor dispute existed but also a determination that the employee's unemployment resulted from the labor dispute.
Wellborn Paint Mfg. Co. v. New Mexico Emp't Sec. Dep't
, 1984-NMCA-075, 101 N.M. 534, 685 P.2d 389.
Lockouts are potentially disqualifying labor disputes under Subsection D (now C),
and once it is determined that a lockout occurred, the statute requires determination that the unemployment arose because of the labor dispute: this requires a causal connection between the employer's decision and a controversy relating to terms or conditions of employment.
Wellborn Paint Mfg. Co. v. New Mexico Emp't Sec. Dep't
, 1984-NMCA-075, 101 N.M. 534, 685 P.2d 389.
Applying availability standard to persons involved in labor dispute.
— Applying an absolute standard of availability for permanent new work with no limitations or restrictions of any kind, regardless of the circumstances prevailing in particular cases to persons whose unemployment results from a labor dispute and holding them unavailable because they will not immediately return to their jobs with the employer with whom they are disputing, or will not sever their employment relationship with that employer and seek permanent new work, would in all cases make such persons ineligible and render the labor dispute disqualification provisions of this section totally superfluous.
Albuquerque-Phoenix Express, Inc. v. Employment Sec. Comm'n
, 88 N.M. 596, 544 P.2d 1161 (1975).
Permanently replaced workers subject to disqualification.
— An employer's notice to striking employees of an intent to permanently replace them during a labor dispute is not tantamount to termination of the strikers' employment, and if the striking employees make no attempt to gain reemployment during the dispute, the disqualifying provisions of Subsection D (now C) remain in effect.
Salazar v. New Mexico Emp't Sec. Div.
, 1993-NMSC-002, 115 N.M. 54, 846 P.2d 1063.
Claimant has no duty to cross picket line to ascertain whether work is available
to him, nor does a failure to so cross under such circumstances disqualify a claimant for unemployment benefits. This would seem to be particularly true when it was known that operations had been completely shut down and all equipment secured and, under circumstances where the company, during prior labor disputes, had clearly advised the nonstriking employees of the particular work that was available to them.
Wilson v. Employment Sec. Comm'n
, 1963-NMSC-085, 74 N.M. 3, 389 P.2d 855.
Fear of violence sufficient for not crossing picket line.
— While one who voluntarily refuses to cross a picket line to go to his work which is available to him participates in the labor dispute, it is equally well recognized that one who has reason to fear violence or bodily harm is not required to pass a picket line, nor is it necessary that a claimant, to be eligible for unemployment benefits, actually experience violence or bodily harm in an attempt to cross a picket line. A reasonable fear of harm or violence is sufficient. Additionally, such fear may arise from the potential for violence, as well as from the violence itself.
Wilson v. Employment Sec. Comm'n
, 1963-NMSC-085, 74 N.M. 3, 389 P.2d 855.
Fear must be reasonable.
— Where employment security commission (now employment security division) found that claimants expressed fear of violence or bodily harm if they crossed picket line, but ignored the all-important requirement that such fears be reasonable, such a finding is incomplete for the purposes of supporting a legal conclusion and thus was properly ignored by the district court in making its own findings and conclusions.
Kennecott Copper Corp. v. Employment Sec. Comm'n
, 1970-NMSC-075, 81 N.M. 532, 469 P.2d 511.
Section casts burden upon claimant to escape disqualification
by showing the eligibility under Subsections D(1) and D(2) (now C(1) and C(2)).
Wilson v. Employment Sec. Comm'n
, 1963-NMSC-085, 74 N.M. 3, 389 P.2d 855.
Claimants had burden of showing they did not participate in labor dispute
which caused the work stoppage. Where work was available to claimants, their failure to establish that they did not voluntarily refuse to cross the picket line because of a reasonable fear of harm or violence disqualified them from receiving unemployment compensation benefits.
Kennecott Copper Corp. v. Employment Sec. Comm'n
, 1970-NMSC-075, 81 N.M. 532, 469 P.2d 511.
Term "stoppage of work,"
as it is used in the context of the Unemployment Compensation Act, refers to the employer's business rather than the employee's work and means a cessation or substantial curtailment of the employer's business.
Albuquerque-Phoenix Express, Inc. v. Employment Sec. Comm'n
, 1975-NMSC-069, 88 N.M. 596, 544 P.2d 1161.
Proper definition of term "directly interested in the labor dispute"
must turn upon the question of what caused the work stoppage in any particular case.
Wilson v. Employment Sec. Comm'n
, 1963-NMSC-085, 74 N.M. 3, 389 P.2d 855.
In labor dispute procedural steps reduced to minimum.
— Legislature intended that in a labor dispute the procedural steps should be reduced to a minimum in order to obtain a prompt ultimate decision.
Kennecott Copper Corp. v. Employment Sec. Comm'n
, 1967-NMSC-182, 78 N.M. 398, 432 P.2d 109.
Where claimants not directly interested in grievance.
— Where the strike was called by reason of a grievance dispute over the suspension of a union member, in which claimants were not "directly interested," there was an insufficient basis for disqualifying the claimants under this section.
Wilson v. Employment Sec. Comm'n
, 1963-NMSC-085, 74 N.M. 3, 389 P.2d 855.
Where claimants' unemployment was due to a labor dispute between union and employer resulting from a grievance over the suspension of a union member, such labor dispute was not one in which claimants, whose wages, hours or working conditions could have been affected by the outcome, but who did not participate in the strike, were "directly interested."
Wilson v. Employment Sec. Comm'n
, 74 N.M. 3, 1963-NMSC-085, 389 P.2d 855.
Labor dispute disqualification not applicable where business does not suffer substantial curtailment.
— There was substantial evidence to support the district court's findings that the employer's business did not suffer any substantial curtailment when the employees involved walked off their jobs, and therefore the labor dispute disqualification provisions did not apply.
Albuquerque-Phoenix Express, Inc. v. Employment Sec. Comm'n
, 1975-NMSC-069, 88 N.M. 596, 544 P.2d 1161.
Not sensible for division to demand claimants quit jobs during labor dispute.
— Since the claimants who were unemployed as a result of a labor dispute were already employed by the company, expected only a temporary unemployment period and, therefore, could be available only for temporary intervening work, it would not make much sense for the commission (now division) to demand that they, in fact, quit their jobs and really join the ranks of the unemployed, or that they abandon their legal rights and economic interest in the labor dispute and return to their jobs with the employer with whom they were disputing on the premise that their dispute was without merit.
Albuquerque-Phoenix Express, Inc. v. Employment Sec. Comm'n
, 1975-NMSC-069, 88 N.M. 596, 544 P.2d 1161.
VII. SUITABLE WORK
Claimant's contention does not make evening work unsuitable.
— Claimant's contention that his responsibility to his grandmother required that he remain with her in the evenings does not make such evening work unsuitable within the meaning of the statute.
Moya v. Employment Sec. Comm'n
, 1969-NMSC-022, 80 N.M. 39, 450 P.2d 925.
"Grade or class" means organized group,
or at least a cohesive group, acting in concert, where the striking member acts with the sanction of his associates, in their behalf.
Wilson v. Employment Sec. Comm'n
, 1963-NMSC-085, 74 N.M. 3, 389 P.2d 855.
"Integral functioning" was rejected as one of basic tests of grade or class
under the Unemployment Compensation Act.
Wilson v. Employment Sec. Comm'n
, 1963-NMSC-085, 74 N.M. 3, 389 P.2d 855.
Dual payments not prohibited.
— There is no inconsistency between this section and Section 51-1-50 NMSA 1978, and nothing under New Mexico law prohibits dual payment of unemployment compensation, so long as such payments are not duplicative in nature. 1953 Op. Att'y Gen. No. 53-5635.
Person not to receive compensation under two laws.
— Reading this section alone, its clear and obvious meaning would be that an individual could not, under any circumstances, receive unemployment compensation under the New Mexico law and under another such compensation law at the same time. 1953 Op. Att'y Gen. No. 53-5635.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 76 Am. Jur. 2d Unemployment Compensation §§ 93 et seq., 140, 149, 150, 158, 162, 163, 184 to 186.
Use of vulgar or profane language as bar to claim for unemployment compensation, 92 A.L.R.3d 106.
Unemployment compensation: eligibility as affected by claimant's refusal to accept employment at compensation less than that of previous job, 94 A.L.R.3d 63.
Unemployment compensation: eligibility as affected by claimant's refusal to work at reduced compensation, 95 A.L.R.3d 449.
Unemployment compensation: eligibility as affected by mental, nervous, or psychological disorder, 1 A.L.R.4th 802.
Right to unemployment compensation as affected by claimant's receipt of holiday pay, 3 A.L.R.4th 557.
Leaving or refusing employment for religious reasons as barring unemployment compensation, 12 A.L.R.4th 611.
Leaving or refusing employment because of allergic reaction as affecting right to unemployment compensation, 12 A.L.R.4th 629.
Right to unemployment compensation as affected by employee's refusal to work in areas where smoking is permitted, 14 A.L.R.4th 1234.
Right to unemployment compensation of one who quit job because not given enough work to keep busy, 15 A.L.R.4th 256.
Employee's refusal to take lie detector test as barring unemployment compensation, 18 A.L.R.4th 307.
Employee's act or threat of physical violence as bar to unemployment compensation, 20 A.L.R.4th 637.
Eligibility for unemployment compensation as affected by voluntary resignation because of change of location of residence, 21 A.L.R.4th 317.
Right to unemployment compensation as affected by misrepresentation in original employment application, 23 A.L.R.4th 1272.
Conduct or activities of employees during off-duty hours as misconduct barring unemployment compensation benefits, 35 A.L.R.4th 691.
Eligibility for unemployment compensation benefits of employee who attempts to withdraw resignation before leaving employment, 36 A.L.R.4th 395.
Unemployment compensation: harassment or other mistreatment by co-worker as "good cause" justifying abandonment of employment, 40 A.L.R.4th 304.
Alcoholism or intoxication as ground for discharge justifying denial of unemployment compensation, 64 A.L.R.4th 1151.
Unemployment compensation: burden of proof as to voluntariness of separation, 73 A.L.R.4th 1093.
Employee's use of drugs or narcotics, or related problems, as affecting eligibility for unemployment compensation, 78 A.L.R.4th 180.
Eligibility for unemployment compensation of employee who left employment based on belief that involuntary discharge was imminent, 79 A.L.R.4th 528.
Unemployment compensation: eligibility where claimant leaves employment under circumstances interpreted as a firing by the claimant but as a voluntary quit by the employer, 80 A.L.R.4th 7.
Private employee's loss of employment because of refusal to submit to drug test as affecting right to unemployment compensation, 86 A.L.R.4th 309.
Unemployment compensation: eligibility as affected by claimant's refusal to work at particular times or on particular shifts for domestic or family reasons, 2 A.L.R.5th 475.
Unemployment compensation claimant's eligibility as affected by loss of, or failure to obtain, license, certificate or similar qualification for continued employment, 15 A.L.R.5th 653.
Right to unemployment compensation or social security benefits of teacher or other school employee, 33 A.L.R.5th 643.
Eligibility for unemployment compensation as affected by claimant's voluntary separation or refusal to work alleging that the work is illegal or immoral, 41 A.L.R.5th 123.
Unemployment compensation: leaving employment to become self-employed or to go into business for oneself as affecting right to unemployment compensation, 45 A.L.R.5th 715.
Unemployment compensation: leaving employment in pursuit of other employment as affecting right to unemployment compensation, 46 A.L.R.5th 659.
Unemployment compensation: leaving employment in pursuit of education or to attend training as affecting right to unemployment compensation, 47 A.L.R.5th 775.
Leaving employment or unavailability for particular job or duties because of sickness or disability, as affecting right to unemployment compensation, 68 A.L.R.5th 13.
Eligibility for unemployment compensation of employee who retires voluntarily, 75 A.L.R.5th 339.
Work-related inefficiency, incompetence, or negligence as "misconduct" barring unemployment compensation, 95 A.L.R.5th 329.
81 C.J.S. Social Security and Public Welfare §§ 160 to 208, 225 to 233, 256, 275, 286.