Current through Register Vol. 35, No. 18, September 24, 2024
A.
Who
may file: A notice of contest may be filed by any responsible
employer.
B.
Grounds:
A notice of contest may be based upon any combination of:
(1) the existence or classification of any
violation alleged in the citation;
(2) the amount of the penalty proposed for
any violation; or
(3) the
reasonableness of the abatement period for any violation alleged in the
citation.
C.
Deadline: A notice of contest shall be filed with the department within
fifteen (15) working days after the employer's receipt of the
citation.
D.
Format:
A notice of contest shall:
(1) substantially
comply with the format illustrated in Section 1011[now 11.5.5.1011
NMAC];
(2) name the department as
the complainant, and the responsible employer filing the notice as the
respondent;
(3) for each citation
contested, identify the items within that citation that are
contested;
(4) for each item
contested, state whether the contest relates to:
(a) the alleged violation itself (either the
existence of the alleged conditions or that such conditions constitute a
violation of the cited provision);
(b) the classification of the alleged
violation;
(c) the proposed
penalty;
(d) the abatement date;
or
(e) a specified combination of
any of the foregoing; and
(5) have attached to it:
(a) a copy of each citation to which the
contest applies, with each such citation being marked as a separate exhibit;
or
(b) if the contest applies only
to certain items within the citation, a copy of each page on which any
contested item appears, with each such item being marked as a separate exhibit
(except that if two or more contested items appear on the same page, that page
may be marked as a single exhibit).
E.
Employee notification
requirements:
(1) Upon filing of a
notice of contest, except as provided in Paragraph 2 of this Subsection, the
responsible employer shall post, at one or more locations reasonably accessible
to the affected employees, a Notice to affected employees (contest of
citation), as illustrated in Section 1004 [now 11.5.5.1004 NMAC], with an
attached copy of the notice of contest (including all exhibits thereto, such
notice shall remain posted until the earliest of the following events:
(a) the filing of a notice of withdrawal of
contest by the respondent;
(b) the
respondent's receipt of a copy of a notice of vacation of citation filed by the
department;
(c) the posting of a
notice to affected employees (informal administrative review);
(d) the posting of a notice to affected
employees (pendency of hearing); or
(e) the respondent's receipt of any order of
the commission dismissing the notice of contest or vacating all citations in
the case.
(2) Posting of
the notice specified in Paragraph 1 of this Subsection is not required if, at
the time the notice of contest is filed, the responsible employer has no
affected employees.
(3) The
responsible employer shall file, with the notice of contest:
(a) an affidavit of posting in the format
illustrated in Section 1009 [now 11.5.5.1009 NMAC], attesting to posting of the
notice specified in Paragraph 1 of this Subsection; or
(b) under the circumstances specified in
Paragraph 2 of this Subsection, an affidavit of explanation for non-posting in
the format illustrated in Section 1010 [now 11.5.5.1010 NMAC].
F.
Forwarding to
commission secretary: The department shall forward the notice of
contest, including all exhibits and accompanying documents, to the commission
secretary within five (5) working days after receipt thereof. Any written
document clearly stating an intention to contest any portion of an identifiable
citation shall be forwarded as a notice of contest without regard to its
timeliness or format.
G.
Untimeliness; improper format:
(1) Any
party alleging that a notice of contest is untimely may file a motion for
dismissal of the contest on that ground.
(a)
If the commission determines that such contest was filed later than fifteen
(15) working days after receipt of the citation to which the notice of contest
is directed, the commission shall dismiss the notice of contest unless the
commission also finds that the untimeliness was caused by some action of the
department.
(b) If the notice of
contest includes a contest of any abatement period for which the time for
filing a petition for modification of abatement period had not expired at the
time the notice of contest was filed, the commission shall, in dismissing the
notice of contest, grant leave for the filing of a petition for modification of
abatement period within ten (10) days after dismissal of the notice of contest.
If filed within that period, the petition shall be treated in all respects as
timely as to any such abatement periods contested in the original
notice.
(2) Any party
alleging that a notice of contest is not substantially in the format required
by this Section may file a motion seeking to require amendment of the notice of
contest to conform with the requirements of this Section. If the hearing
officer finds that the notice of contest does not substantially conform with
the requirements of this Section, the hearing officer may order the respondent
to file an amended notice of contest, conforming to the requirements of this
Section, within ten (10) days after service of the order on the respondent. If
the respondent fails to comply with such order, the commission may, upon
subsequent motion of the same party, dismiss the respondent's notice of
contest.