A. All benefits provided herein are payable from the unemployment compensation fund. All benefits shall be paid in accordance with rules prescribed by the secretary through employment offices or other agencies as the secretary approves by general rule.

B. Weekly benefits shall be as follows:

(1) an individual's "weekly benefit amount" is an amount equal to fifty-three and one-half percent of the average weekly wage for insured work paid to the individual in that quarter of the individual's base period in which total wages were highest. No benefit as so computed may be less than ten percent or more than fifty-three and one-half percent of the state's average weekly wage for all insured work. The state's average weekly wage shall be computed from all wages reported to the department from employing units in accordance with rules of the secretary for the period ending June 30 of each calendar year divided by the total number of covered employees divided by fifty-two, effective for the benefit years commencing on or after the first Sunday of the following calendar year. An individual is not eligible to receive benefits unless the individual has wages in at least two quarters of that individual's base period. For the purposes of this subsection, "total wages" means all remuneration for insured work, including commissions and bonuses and the cash value of all remuneration in a medium other than cash;

(2) an eligible individual who is unemployed in any week during which the individual is in a continued claims status shall be paid, with respect to the week, a benefit in an amount equal to the individual's weekly benefit amount, less that part of the wages, if any, or earnings from self-employment, payable to the individual with respect to such week that is in excess of one-fifth of the individual's weekly benefit amount. For purposes of this subsection only, "wages" includes all remuneration for services actually performed in a week for which benefits are claimed, vacation pay for a period for which the individual has a definite return-to-work date, wages in lieu of notice and back pay for loss of employment but does not include payments through a court for time spent in jury service;

(3) notwithstanding any other provision of this section, an eligible individual who, pursuant to a plan financed in whole or in part by a base-period employer of the individual, is receiving a governmental or other pension, retirement pay, annuity or any other similar periodic payment that is based on the previous work of the individual and who is unemployed with respect to any week ending subsequent to April 9, 1981 shall be paid with respect to the week, in accordance with rules prescribed by the secretary, compensation equal to the individual's weekly benefit amount reduced, but not below zero, by the prorated amount of the pension, retirement pay, annuity or other similar periodic payment that exceeds the percentage contributed to the plan by the eligible individual. The maximum benefit amount payable to the eligible individual shall be an amount not more than twenty-six times the individual's reduced weekly benefit amount. If payments referred to in this section are being received by an individual under the federal Social Security Act, the division shall take into account the individual's contribution and make no reduction in the weekly benefit amount;

(4) in the case of a lump-sum payment of a pension, retirement or retired pay, annuity or other similar payment by a base-period employer that is based on the previous work of the individual, the payment shall be allocated, in accordance with rules prescribed by the secretary, and shall reduce the amount of unemployment compensation paid, but not below zero, in accordance with Paragraph (3) of this subsection; and

(5) the retroactive payment of a pension, retirement or retired pay, annuity or any other similar periodic payment as provided in Paragraphs (3) and (4) of this subsection attributable to weeks during which an individual has claimed or has been paid unemployment compensation shall be allocated to those weeks and shall reduce the amount of unemployment compensation for those weeks, but not below zero, by an amount equal to the prorated amount of the pension. Any overpayment of unemployment compensation benefits resulting from the application of the provisions of this paragraph shall be recovered from the claimant in accordance with the provisions of Section 51-1-38 NMSA 1978.

C. An individual otherwise eligible for benefits shall be paid for each week of unemployment, in addition to the amount payable under Subsection B of this section, the sum of twenty-five dollars ($25.00) for each unemancipated child under the age of eighteen, up to a maximum of two and subject to the maximum stated in Subsection D of this section, of the individual who is in fact dependent upon and wholly or mainly supported by the individual, including:

(1) a child in the individual's custody pending the adjudication of a petition filed by the individual for the adoption of the child in a court of competent jurisdiction; or

(2) a child for whom the individual, under a decree or order from a court of competent jurisdiction, is required to contribute to the child's support and for whom no other person is receiving allowances under the Unemployment Compensation Law if the child is domiciled within the United States or its territories or possessions, the payment to be withheld and paid pursuant to Section 51-1-37.1 NMSA 1978.

D. Dependency benefits shall not exceed fifty percent of the individual's weekly benefit rate. The amount of dependency benefits determined as of the beginning of an individual's benefit year shall not be reduced for the duration of the benefit year, but this provision does not prevent the transfer of dependents' benefits from one spouse to another in accordance with this subsection. If both the husband and wife receive benefits with respect to a week of unemployment, only one of them is entitled to a dependency allowance with respect to a child. The division shall prescribe standards as to who may receive a dependency allowance when both the husband and wife are eligible to receive unemployment compensation benefits. Dependency benefits shall not be paid unless the individual submits documentation satisfactory to the division establishing the existence of the claimed dependent. If the provisions of this subsection are satisfied, an otherwise eligible individual who has been appointed guardian of a dependent child by a court of competent jurisdiction shall be paid dependency benefits.

E. An otherwise eligible individual is entitled during any benefit year to a total amount of benefits equal to whichever is the lesser of twenty-six times the individual's weekly benefit amount, plus any dependency benefit amount pursuant to Subsections C and D of this section, or sixty percent of the individual's wages for insured work paid during the individual's base period.

F. A benefit as determined in Subsection B or C of this section, if not a multiple of one dollar ($1.00), shall be rounded to the next lower multiple of one dollar ($1.00).

G. The secretary may prescribe rules to provide for the payment of benefits that are due and payable to the legal representative, dependents, relatives or next of kin of claimants since deceased. These rules need not conform with the laws governing successions, and the payment shall be deemed a valid payment to the same extent as if made under a formal administration of the succession of the claimant.

H. The division, on its own initiative, may reconsider a monetary determination whenever it is determined that an error in computation or identity has occurred or that wages of the claimant pertinent to such determination but not considered have been newly discovered or that the benefits have been allowed or denied on the basis of misrepresentation of fact, but no redetermination shall be made after one year from the date of the original monetary determination. Notice of a redetermination shall be given to all interested parties and shall be subject to an appeal in the same manner as the original determination. In the event that an appeal involving an original monetary determination is pending at the time a redetermination is issued, the appeal, unless withdrawn, shall be treated as an appeal from redetermination.

History: 1953 Comp., § 59-9-3, enacted by Laws 1969, ch. 213, § 1; 1977, ch. 321, § 1; 1979, ch. 280, § 12; 1981, ch. 354, § 1; 1983, ch. 199, § 1; 1985, ch. 31, § 1; 1990, ch. 18, § 1; 1991, ch. 122, § 2; 1993, ch. 209, § 1; 1998, ch. 91, § 1; 2000, ch. 3, § 1; 2000, ch. 7, § 1; 2003, ch. 47, § 1; 1978 Comp., § 51-1-5, repealed and reenacted by Laws 2003, ch. 47, § 8; 2005, ch. 3, § 1; 2007, ch. 137, § 1; 2009, ch. 97, § 1; 2010, ch. 55, § 1; 2011, ch. 184, § 1.

Repeals and reenactments. — Laws 1969, ch. 213, § 1, repealed former 59-9-3, 1953 Comp., relating to benefits, and enacted a new 59-9-3, 1953 Comp.

Laws 2003, ch. 47, § 8 repealed Laws 1969, ch. 213, § 1 and enacted a new section. 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 advised that the event described took place prior to the 2005 amendment.

Laws 2005, ch. 3, § 6 repealed that version of 51-1-4 NMSA 1978 enacted by Laws 2003, ch. 47, § 8, as amended by Laws 2005, ch. 3, § 1 and enacted a new 51-1-4 NMSA 1978.

Laws 2007, ch. 137, § 6 repealed Laws 2005, ch. 3, § 6 through 11 and 13 effective July 1, 2007.

Cross references. — For the definition of "secretary", see 51-1-2 NMSA 1978.

For unemployment compensation fund, see 51-1-19 NMSA 1978.

For the federal Social Security Act, see 42 U.S.C. § 301 et seq.

The 2011 amendment, effective July 1, 2011, in Subsection C, lowered the maximum number of emancipated children for which an individual may be paid benefits.

Applicability. — Laws 2011, ch. 184, § 6 provided that Laws 2011, ch. 184, § 1 apply to benefit years beginning on or after July 1, 2011.

The 2010 amendment, effective July 1, 2010, in Subsection B(1), deleted "except as provided in Paragraph (2) of this subsection"; deleted former Subsection B(2), which provided that from July 1, 2009 through June 30, 2011, an individual's weekly benefit amount was equal to sixty percent of the average weekly wage for insured work paid to the individual in the quarter of the individual's base period in which total wages were highest, but not less than ten percent or more than sixty percent of the state's average weekly wage for all insured work; renumbered succeeding paragraphs accordingly; in Subsection B(4), after "Paragraph", changed "(4)" to "(3)"; and in Subsection B(5), changed "Paragraphs (4) and (5)" to "Paragraphs (3) and (4)".

The 2009 amendment, effective June 19, 2009, in Paragraph (1) of Subsection B, added "except as provided in Paragraph (2) of this subsection" and added Paragraph (2) of Subsection B.

The 2007 amendment, effective July 1, 2007, increased the weekly benefit amount to fifty-three and one-half percent of the state's average weekly wage and increased the dependent allowance benefit to $25 of each child under the age of eighteen. See Laws 2005, ch. 3, § 13 for contingent effective date.

The 2005 amendment, effective February 8, 2005, in Subsection A, substituted "fifty-two and one-half percent of the average weekly wage" for "one twenty-sixth of the total wages"; added new Subsections C and D; relettered former Subsections C through F as Subsections E through H; and in Subsection E, added "plus any dependency benefit amount pursuant to Subsections C and D of this section".

The 2003 amendment, effective March 19, 2003, in Subsection A substituted "rules prescribed by" for "such regulations as" and deleted "may prescribe" following "the secretary" near the middle, substituted "approves" for "may" near the end and deleted "approve" at the end; substituted "Effective July 1, 2003, weekly" for "Weekly" at the beginning of Subsection B; in Paragraph B(1) substituted "fifty-two and one-half percent of the average weekly wage" for "one twenty-sixth of the total wages" near the beginning; added present Subsections C and D and redesignated the subsequent paragraphs accordingly; inserted "plus any dependency benefit amount pursuant to Subsections C and D of this section" following "weekly benefit amount" near the middle of present Subsection E; and substituted "rules" for "regulations" throughout the section.

The 2000 amendment, effective July 1, 2000, substituted "he has wages in at least two quarters of his base period" for "his total base period wages equal at least one and one-fourth times the wages for insured work in that quarter of his base period in which such wages are highest" in the next-to-last sentence of Subsection B(1).

The 1998 amendment, effective July 1, 1998, added the last sentence in Paragraph B(1).

The 1993 amendment, effective April 5, 1993, rewrote the second sentence of Subsection B(2) and added the final sentence of Subsection B(3).

The 1991 amendment, effective April 3, 1991, rewrote the catchline, which read "Benefits"; in Subsection B, inserted "during which he is in a continued claims status" near the beginning and added the language beginning "for purposes of this section" at the end of Paragraph (2) and substituted "April 9, 1981" for "the effective date of this act" and "secretary" for "department" near the middle of Paragraph (3); substituted "or" for "and" preceding "sixty percent" in Subsection C; and added Subsections E and F.

The 1990 amendment, effective February 28, 1990, in Paragraph (3) of Subsection B, made minor stylistic changes in the first sentence and substituted "amount not more than" for "amount equal to" in the second sentence; and in Paragraph (4) of Subsection B, made a stylistic change and deleted "to applicable periods to which such payments are reasonably attributable, following the last week worked prior to retirement" following "the secretary".

Law unambiguous and in harmony with federal law. — The Unemployment Compensation Law is not ambiguous with regard to the definition of "regular" and "extended" benefits and is not in conflict with federal statutes and regulations. New Mexico Hosp. Ass'n v. Employment Sec. Comm'n, 1979-NMSC-043, 92 N.M. 725, 594 P.2d 1181.

"Regular" and "extended" benefits defined. — "Regular" benefits are those benefits provided under this section for 26 weeks and "extended" benefits are those benefits payable under Section 51-1-48 NMSA 1978 during an extended benefit period to those claimants who have exhausted all their rights to regular benefits. New Mexico Hosp. Ass'n v. Employment Sec. Comm'n, 1979-NMSC-043, 92 N.M. 725, 594 P.2d 1181.

Social security payments were not deductible from unemployment benefits under the 1991 version of Subsection B(3). The 1993 amendment was meant to clarify the existing law rather than change the law. Wasko v. New Mexico Dep't of Labor, 1994-NMSC-076, 118 N.M. 82, 879 P.2d 83.

No private right of action for interference with recovery of unemployment compensation. — A terminated employee who alleged that her employer's testimony prevented her from receiving unemployment benefits had no private right of action against the employer for interference with recovery of unemployment compensation. Stock v. Grantham, 1998-NMCA-081, 125 N.M. 564, 964 P.2d 125, cert. denied, 125 N.M. 322, 961 P.2d 167.

Law reviews. — For article, "Unemployment Compensation in New Mexico," see 11 N.M.L. Rev. 327 (1981).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 76 Am. Jur. 2d Unemployment Compensation §§ 13 to 16.

Alien's right to unemployment compensation benefits, 87 A.L.R.3d 694.

Reductions to back pay awards under Title VII of Civil Rights Act of 1964 (42 USCS §§ 2000e et seq.), 135 A.L.R. Fed. 1

Period of time covered by back pay award under Title VII of Civil Rights Act of 1964 (42 USCS §§ 2000e et seq.), 137 A.L.R. Fed. 1

Allowance and rates of interest on backpay award under Title VII of Civil Rights Act of 1964 (42 USCS §§ 2000e et seq.), 138 A.L.R. Fed. 1

Additions to back pay awards under Title VII of Civil Rights Act of 1964 (42 USCA §§ 2000(e) et seq.), 146 A.L.R. Fed. 403.

81 C.J.S. Social Security and Public Welfare §§ 146, 213, 241 to 246, 274, 292 to 294.