New Mexico Administrative Code
Title 11 - LABOR AND WORKERS' COMPENSATION
Chapter 5 - OCCUPATIONAL HEALTH AND SAFETY
Part 5 - OCCUPATIONAL HEALTH AND SAFETY REVIEW COMMISSION PROCEDURES
Section 11.5.5.503 - SETTLEMENTS

Universal Citation: 11 NM Admin Code 11.5.5.503

Current through Register Vol. 35, No. 18, September 24, 2024

A. Settlement encouraged: Settlement upon terms that are consistent with the provisions of the Act is encouraged at any stage of the proceedings.

B. Content of settlement agreement: Every proposed settlement agreement shall:

(1) state how each contested item of every citation in the case is affected by the settlement;

(2) if the settlement is contingent upon certain action by the respondent, describe the contingency and the consequences of the respondent's failure to meet the contingency;

(3) if the settlement is not intended as a full and complete settlement of all issues in the case, list those issues not settled;

(4) if the case was initiated by a notice of contest contain:
(a) a withdrawal of the respondent's contest, except as to any items not settled;

(b) statements that:
(i) the cited violations, except any alleged violations vacated by the settlement:
a) have been abated; or

b) will be abated by a date specified in the settlement agreement; and

(ii) the penalty, if any:
a) previously has been paid;

b) is tendered with the settlement agreement; or c) will be paid by a specified date;

(5) bear the signature and date of signature of:
(a) the complainant or petitioner, or that party's advocate;

(b) the respondent, or that party's advocate; and

(c) if there are intervenors, each intervenor who approves the settlement agreement, or their advocates; and

(6) if there are parties who have not approved the settlement agreement, include a certificate of service signed by one of the approving parties or by the advocate for one of the approving parties, and attesting to service of a copy of the settlement agreement on each party who has not approved the settlement agreement.

C. Additional terms allowed: A settlement agreement may contain additional terms and conditions deemed appropriate by the parties, so long as such additional terms and conditions are consistent with the provisions of the Act.

D. Employee notification requirements:

(1) Prior to the filing of any settlement agreement, the respondent in a case initiated by a notice of contest or the petitioner in a case initiated by a petition for modification of abatement period shall post, at one or more locations reasonably accessible to the affected employees, a notice to affected employees (proposed settlement of case), as illustrated in Section 1008 [now 11.5.5.1008 NMAC], with an attached copy of the settlement agreement signed by all approving parties. Such notice shall remain posted until at least twenty (20) days after filing of the settlement agreement.

(2) Posting of the notice specified in Paragraph 1 of this Subsection is not required if, at the time posting otherwise would be required:
(a) the case was initiated by a notice of contest and the responsible employer has no affected employees; or

(b) the case was initiated by a petition for modification of abatement period filed by an affected employee, and the responsible employer has no other affected employees.

(3) The person responsible for posting the notice specified in Paragraph 1 of this Subsection shall submit to the department, within five (5) days after posting, the original settlement agreement and:
(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.

E. Filing: The department shall be responsible for filing a settlement agreement regardless of which party initiated the settlement agreement. As soon as practicable after receipt of the settlement agreement and the affidavit of posting or affidavit of explanation for non-posting, as applicable, the department shall file the settlement agreement and the affidavit with the commission secretary.

F. Objections:

(1) At any time prior to expiration of twenty (20) days after filing of a settlement agreement, objections to the settlement agreement may be filed by:
(a) any affected employee or representative of affected employees other than a party;

(b) any party who has not approved the settlement agreement; or

(c) any commission member.

(2) Any objection filed shall be served on each party and, if filed by any person other than a commission member, shall state the reasons for the objection. The objection must include a certificate of service in the format illustrated in Section 1001 [now 11.5.5.1001 NMAC].

G. Approval of settlement agreement:

(1) If no timely objection to a settlement agreement is filed:
(a) the settlement agreement shall become a final order of the commission, without further action, upon expiration of the time for filing of objections; and

(b) the commission secretary shall promptly issue a notice of finality of settlement agreement and serve a copy on each party.

(2) If a timely objection is filed, the commission shall meet and consider the proposed settlement agreement, with or without a hearing as the commission deems appropriate. The commission may approve the settlement agreement, notwithstanding the objection, if the commission finds that the settlement agreement is consistent with the purpose of the Act and is otherwise appropriate.

Disclaimer: These regulations may not be the most recent version. New Mexico may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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