New Mexico Administrative Code › Title 11 - LABOR AND WORKERS' COMPENSATION › Chapter 3 - EMPLOYMENT SECURITY › Part 300 - CLAIMS ADMINISTRATION › Section 11.3.300.319 - STANDARDS FOR WAGES ELIGIBLE TO PURGE BENEFIT DISQUALIFICATION; BONA FIDE EMPLOYMENT

Current through Register Vol. 35, No. 13, July 16, 2024
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.