A. Notwithstanding any provisions to the contrary in the Workers’ Compensation Act [52-1-1 NMSA 1978], 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. Each executive employee or sole proprietor desiring to affirmatively elect not to accept the provisions of the Workers’ Compensation Act [52-1-1 NMSA 1978] may do so by filing an election in the office of the director.
C. Each executive employee or sole proprietor desiring to revoke his affirmative election not to accept the provisions of the Workers’ Compensation Act [52-1-1 NMSA 1978] 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.
D. The filing of an affirmative election not to accept the provisions of the Workers’ Compensation Act [52-1-1 NMSA 1978] shall create a conclusive presumption that an executive employee or sole proprietor 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. In determining the number of workers of an employer to determine who comes within the Workers’ Compensation Act [52-1-1 NMSA 1978], 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 employer.
F. For purposes of this section:
(1) “executive employee” means the chairman of the board, president, vice president, secretary, treasurer or other executive officer, if he 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) “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.
HISTORY:
1953 59-10-4.1, enacted by Laws 1975, ch. 284, § 4; 1979, ch. 368, § 5; 1987, ch. 235, § 8; 1993, ch. 193, § 2; 2003, ch. 259, § 3.
Notes to Decisions
Constitutionality.
Section 52-1-6C NMSA 1978, in the light of 52-1-7 NMSA 1978, does not violate equal protection because a substantial distinction exists between an executive officer of a business or professional corporation and an ordinary workman; each of these classifications are not wholly devoid of any semblance of reason to support it as to amount to mere caprice. Shope v. Don Coe Constr. Co., 1979-NMCA-013, 92 N.M. 508, 590 P.2d 656, 1979 N.M. App. LEXIS 796 (N.M. Ct. App. 1979).
Corporate officers.
Workers’ compensation benefits were properly denied to a worker where his employer did not regularly employ more than three employees, as required by 52-1-2 NMSA 1978, because the employer was not covered by the Workers’ Compensation Act (52-1-1 NMSA 1978); although 52-1-7E NMSA 1978 provided that those who elected not to be covered under the Act were nonetheless to be counted in determining whether an employer came within the Act, it did not apply because the corporate owners-officers of a tile company, were not 52-1-7F NMSA 1978 employees. Garcia v. Watson Tile Works, 1990-NMCA-126, 111 N.M. 209, 803 P.2d 1114, 1990 N.M. App. LEXIS 139 (N.M. Ct. App. 1990).
Executive employees.
Appellate court construed 52-1-6A NMSA 1978 to require all incorporated construction employers to abide by the strictures of the Workers’ Compensation Act (Act), even those who employed only executive employees that elected to individually opt out of coverage under this section; the district court erred in reversing the decision of the Workers’ Compensation Administration, determining that the construction employer was subject to the Act and had to procure the required workers’ compensation insurance. Jackson Constr., Inc. v. Smith, 2012-NMCA-033, 277 P.3d 470, 2012 N.M. App. LEXIS 26 (N.M. Ct. App. 2012).