SB9 - Removing ag workers comp exemption

SENATE BILL 9
49th legislature - STATE OF NEW MEXICO - first session, 2009

INTRODUCED BY
Cisco McSorley

FOR THE COURTS, CORRECTIONS AND JUSTICE COMMITTEE

AN ACT

RELATING TO WORKERS' COMPENSATION; REMOVING THE EXCLUSION FROM THE WORKERS' COMPENSATION ACT REQUIREMENTS FOR EMPLOYERS OF FARM AND RANCH LABORERS IF THE EMPLOYER EMPLOYS THREE OR MORE EMPLOYEES; PROVIDING AN AFFIRMATIVE ELECTION TO EXCLUDE FAMILY MEMBER EMPLOYEES IN A FAMILY FARMING BUSINESS FROM THE PROVISIONS OF THE WORKERS' COMPENSATION ACT; PROVIDING FOR REVOCATION OF AFFIRMATIVE ELECTIONS TO EXCLUDE CERTAIN EMPLOYEES FROM THAT ACT; CLARIFYING DETERMINATION OF NUMBER OF EMPLOYEES OF A FAMILY FARMING BUSINESS; DEFINING TERMS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 52-1-6 NMSA 1978 (being Laws 1990 (2nd S.S.), Chapter 2, Section 4) is amended to read:

"52-l-6. APPLICATION OF PROVISIONS OF ACT.--

A. The provisions of the Workers' Compensation Act shall apply to employers of three or more workers; provided that act shall apply to all employers engaged in activities required to be licensed under the provisions of the Construction Industries Licensing Act regardless of the number of employees. The provisions of the Workers' Compensation Act shall not apply to employers of private domestic servants [and farm and ranch laborers]. Language within brackets [ ] is deleted.

B. An election to be subject to the Workers' Compensation Act by employers of private domestic servants [or farm and ranch laborers], by persons for whom the services of qualified real estate salespersons are performed or by a partner or self-employed person may be made by filing, in the office of the director, either a sworn statement to the effect that the employer accepts the provisions of the Workers' Compensation Act or an insurance or security undertaking as required by Section 52-l-4 NMSA l978.

C. Every worker shall be conclusively presumed to have accepted the provisions of the Workers' Compensation Act if [his] the worker's employer is subject to the provisions of that act and has complied with its requirements, including insurance.

D. [Such] Compliance with the provisions of the Workers' Compensation Act, including the provisions for insurance, shall be [and construed to be] a surrender by the employer and the worker of their rights to any other method, form or amount of compensation or determination thereof or to any cause of action at law, suit in equity or statutory or common-law right to remedy or proceeding whatever for or on account of personal injuries or death of the worker other than [as] those actions, suits or rights provided in the Workers' Compensation Act and shall be an acceptance of all of the provisions of the Workers' Compensation Act and shall bind the worker [himself] and, for compensation for [his] the worker's death, shall bind [his] the worker's personal representative, [his] surviving spouse and next of kin, as well as the employer and those conducting [his] the employer's business during bankruptcy or insolvency.

E. The Workers' Compensation Act provides exclusive remedies. No cause of action outside the Workers' Compensation Act shall be brought by an employee or dependent against the employer or [his] the employer's representative, including the insurer, guarantor or surety of any employer, for any matter relating to the occurrence of or payment for any injury or death covered by the Workers' Compensation Act. Nothing in the Workers' Compensation Act, however, shall affect [or be construed to affect] in any way the existence of or the mode of trial of any claim or cause of action that the worker has against any person other than [his] the worker's employer or another employee of [his] the worker's employer, including a management or supervisory employee, or the insurer, guarantor or surety of [his] the worker's employer."

Section 2. Section 52-1-7 NMSA 1978 (being Laws 1975, Chapter 284, Section 4, as amended) is amended to read:

"52-1-7. APPLICATION OF PROVISIONS OF ACT TO CERTAIN EXECUTIVE EMPLOYEES, [OR] SOLE PROPRIETORS OR FAMILY MEMBER EMPLOYEES OF A FAMILY FARMING BUSINESS.--

A. Notwithstanding any provisions to the contrary in the Workers' Compensation Act, an executive employee of a professional or business corporation or limited liability company, employed by the professional or business corporation or limited liability company as a worker as defined in the Workers' Compensation Act, or a sole proprietor may affirmatively elect not to accept the provisions of the Workers' Compensation Act.

B. Notwithstanding any provisions to the contrary in the Workers' Compensation Act, the employer of a family member employee in a family farming business may affirmatively elect not to accept the provisions of the Workers' Compensation Act for the family member employee.

[B. Each] C. An executive employee, [or] sole proprietor or employer of a family member employee of a family farming business desiring to affirmatively elect not to accept the provisions of the Workers' Compensation Act as permitted in Subsection A or B of this section may do so by filing an election in the office of the director. An employer of a family member employee of a family farming business shall deliver a copy of the affirmative election made pursuant to this section to the family member employee for whom the affirmative election is made.

[C. Each] D. An executive employee, [or] sole proprietor or employer of a family member employee of a family farming business desiring to revoke [his] an affirmative election made pursuant to this section not to accept the provisions of the Workers' Compensation Act may do so by filing a revocation of the affirmative election with the workers' compensation insurer and in the office of the director. The revocation shall become effective thirty days after filing. An executive employee shall cause a copy of the revocation to be mailed to the board of directors of the professional or business corporation or limited liability company. An employer of a family member employee of a family farming business shall deliver a copy of the revocation of the affirmative election made pursuant to this section to the family member employee for whom the affirmative election was made.

[D.] E. The filing of an affirmative election not to accept the provisions of the Workers' Compensation Act shall create a conclusive presumption that an executive employee, [or] sole proprietor or family member employee of a family farming business is not covered by the Workers' Compensation Act until the effective date of a revocation filed pursuant to this section. The filing of an affirmative election not to accept the provisions of the Workers' Compensation Act shall apply to all corporations or limited liability companies in which the executive employee has a financial interest.

[E.] F. In determining the number of workers of an employer to determine who comes within the Workers' Compensation Act, an executive employee who has filed an affirmative election not to be subject to the Workers' Compensation Act shall be counted for determining the number of workers employed by [such] the employer.

G. In determining the number of workers of an employer to determine who comes within the Workers' Compensation Act, a family member employee of a family farming business shall not be counted by the employer.

[F.] H. For purposes of this section:

(1) "executive employee" means the [chairman] chair of the board, president, vice president, secretary, treasurer or other executive officer, if [he] that person owns ten percent or more of the outstanding stock, of the professional or business corporation or a ten percent ownership interest in the limited liability company; [and]

(2) "family farming business" means a sole proprietorship, partnership, limited liability company or corporation in which all of the partners, members or shareholders are related within the third degree by blood or marriage and where the business cultivates the land for the production of agricultural crops, fruit or other horticultural products or the business is for the ownership, keeping or feeding of animals for the production of livestock or livestock products;

(3) "family member employee" means a spouse of an employer or an employee related to the employer within the third degree by blood or marriage;

(4) "within the third degree by blood or marriage" means related to the third degree of consanguinity or affinity and includes parents, grandparents, great- grandparents, children, grandchildren, great-grandchildren, brothers, sisters, uncles, aunts, nephews, nieces and spouses; and

[(2)] (5) "sole proprietor" means a single individual who owns all the assets of a business, is solely liable for its debts and employs in the business no person other than [himself] that individual."

Section 3. REPEAL.--Section 52-1-6.1 NMSA 1978 (being Laws 1984, Chapter 127, Section 988.3) is repealed.

- 7 -