New Mexico Administrative Code
Title 11 - LABOR AND WORKERS' COMPENSATION
Chapter 3 - EMPLOYMENT SECURITY
Part 300 - CLAIMS ADMINISTRATION
Section 11.3.300.314 - FRAUDULENT CLAIMS
Universal Citation: 11 NM Admin Code 11.3.300.314
Current through Register Vol. 35, No. 18, September 24, 2024
A. Claimant Fraud:
(1) Subsection F of Section
51-1-38
NMSA of the Unemployment Compensation Law provides: "Notwithstanding any other
provision of the Unemployment Compensation Law, including the provisions of
Subsection J of Section
51-1-8 NMSA
1978, if any individual claiming benefits or waiting period credits shall, in
connection with such claim, make any false statement or representation, in
writing or otherwise, knowing it to be false or shall knowingly fail to
disclose any material fact in order to obtain or increase the amount of a
benefit payment, such claim shall not constitute a valid claim for benefits in
any amount or for waiting period credits but shall be void and of no effect for
all purposes. The entire amount of the benefits obtained by means of such claim
shall be, in addition to any other penalties provided herein, subject to
recoupment by deduction from the claimant's future benefits or they may be
recovered as provided for the collection of past due contributions in
Subsection B of Section
51-1-36
NMSA 1978." The terms used in, Section
51-1-38
NMSA 1978 mean:
(a) "False" means a statement
contrary to fact.
(b) "Knowingly"
means the person making the statement, at the time it was made, knew the
statement to be false or should have known it to be false because the person
had no reasonable basis for believing it to be true.
(c) "Knowingly fails to disclose any material
fact" means the claimant deliberately withholds information which the claimant
knows should be disclosed to the department.
(d) "Material fact" means the fact affects
the eventual outcome of a transaction. A fact which, if known, would result in
a determination adverse to the claimant is a material fact. A fact is not
material if the failure to disclose it or the intentional misstatement of it
would not cause injury. A fact which, if known, would not cause a denial or
reduction of benefits or disqualification from receipt of benefits is not a
material fact.
(e) "With intent to
obtain benefits" means the claimant intended the statement to assist the
claimant to obtain benefits. In the absence of facts to indicate otherwise,
when concealment of a material fact by willful misstatement or nondisclosure
occurs in connection with a claim for benefits, it is assumed that the
claimant's intent was to obtain or increase the amount of a benefit payment.
When facts are established which indicate a different intent, the conclusions
as to the claimant's intent shall be based on consideration of all the facts
and not merely an assumption.
(2) Claimants who inadvertently make a
mistake or omission on the basis of information previously given them by the
department, cannot reasonably be expected to understand their responsibility
and shall not be subject to the provisions of Subsection D of Section
51-1-38
NMSA 1978.
(3) The department shall
impose an administrative penalty pursuant to Subsection A of Section
51-1-38
NMSA 1978 for each week that a claimant knowingly makes a false statement or
representation or knowingly fails to disclose a material fact to obtain or
increase the amount of a benefit payment. Administrative penalties shall be
imposed as follows:
(a) for each week of
unreported or underreported earnings, the claimant shall forfeit all benefit
rights for a period of four weeks, up to a maximum of 52 weeks, from the date
of the determination;
(b) for each
false statement on separation, eligibility, refusal of work and other issues,
the claimant shall forfeit all benefit rights for a period of four weeks, up to
a maximum of 52 weeks, from the date of the determination; and
(c) In any case where a claimant fraudulently
obtained or increased benefits in two or more separate offenses, the claimant
shall forfeit all benefit rights for 52 weeks from the date of the
determination.
(4) The
department shall demand immediate repayment of any overpayment established
pursuant to Subsection D of Section
51-1-38
NMSA 1978. A warrant of levy and lien shall be filed in all cases where the
overpayment is not repaid immediately. Recovery of the overpayment may be by
any means permitted by law. Recovery of fraudulent overpayments may include
court awarded costs. The court costs awarded by the court shall be added to the
overpayment and shall be collected in the same manner as the underlying
overpayment.
(5) Restitution of an
amount overpaid to a claimant due to fraudulent misrepresentation or failure to
disclose a material fact shall not preclude the department from requesting
criminal proceedings against such claimant.
(6) The department shall impose a civil
penalty pursuant to Subsection B of Section
51-1-38
NMSA 1978 upon every claimant who knowingly makes a false statement or
representation or knowingly fails to disclose a material fact to obtain or
increase the amount of a benefit payment. The total amount of the penalty shall
be twenty-five percent of the amount of benefits overpaid as a result of the
claimant's false statement or representation or knowing failure to disclose a
material fact. The department shall apply the penalty as follows:
(a) an amount equal to the first fifteen
percent of the amount of benefits overpaid as a result of the claimant's false
statement or representation or knowing failure to disclose a material fact
shall be deposited in the "unemployment compensation fund" set forth in Section
51-1-19
NMSA 1978.
(b) an amount equal to
the remaining ten percent of the amount of benefits overpaid as a result of the
claimant's false statement or representation or knowing failure to disclose a
material fact shall be deposited in the Employment Security Department
Fund.
(7) Any payments
received from a claimant for repayment for any overpayment and civil penalty
shall be applied first to the principal amount of the overpayment and any
payment in excess of the principal amount of the overpayment shall be applied
to pay the civil penalty.
B. Employer Fraud:
(1) Subsection D of Section
51-1-38
NMSA 1978 provides: "In addition to the penalty pursuant to subsection C of
this section, any employing unit or officer or agent of an employing unit that
makes a false statement or representation knowing it to be false or that
knowingly fails to disclose a material fact to prevent or reduce the payment of
benefits to any claimant eligible for benefits under the Unemployment
Compensation Law shall be required to pay a civil penalty in an amount not to
exceed $10,000 as determined by rule established by the department. The penalty
shall be collected in a manner provided in Subsection B of Section
51-1-36
NMSA 1978 and distributed to the fund."
(2) When imposing a civil penalty upon
employers found to have made a false statement or representation knowing it to
be false or to have knowingly failed to disclose a material fact to prevent or
reduce the payment of benefits to any claimant eligible for benefits under the
Unemployment Compensation Law, the department shall adhere to the following
guidelines:
(a) an initial violation shall
subject the employer to a maximum penalty of $500.00;
(b) a second violation within a period of
three years of the previous violation shall subject the employer to a penalty
that is no less than $500.00 and no more than $1,000.00;
(c) a third violation within a period of
three years of the most recent violation shall subject the employer to a
penalty that is no less than $1,000.00 and no more than $2,000.00;
(d) a fourth or subsequent violation within a
period of three years of the most recent violation shall subject the employer
to a penalty that is no less than $2,000.00 and no more than
$10,000.00.
(3) The
department shall demand immediate repayment of any civil penalty established
pursuant to Subsection D of Section
51-1-38
NMSA 1978. A warrant of levy and lien shall be filed in all cases where the
civil penalty is not repaid immediately. Recovery of the civil penalty may be
by any means permitted by law. Recovery of the civil penalty may include court
awarded costs. The court costs awarded by the court shall be added to the civil
penalty.
(4) Payment of the civil
penalty due to fraudulent misrepresentation or failure to disclose a material
fact by any employing unit or officer or agent of an employing unit shall not
preclude the department from requesting criminal proceedings against such
employing unit or officer or agent of an employing unit.
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