A. The following employers, when the conditions and hazards inherent in the occupation involved are such as to expose the employees to any of the hazards of occupational disease, shall be subject to the provisions of the New Mexico Occupational Disease Disablement Law: the state and each county, municipality, school district, drainage, irrigation or conservancy district and public institution and administrative board thereof, every charitable organization and every private person, firm or corporation engaged in carrying on business or trade within the state having in service four or more employees regularly employed in the same business or in or about the same establishment under any contract of hire, express or implied, oral or written, except employers of ranching or agricultural laborers and employers of private domestic servants; provided, however, effective January 1, 1978, the provisions of the New Mexico Occupational Disease Disablement Law shall apply to employers of three or more employees, except employers of ranching or agricultural laborers and employers of private domestic servants and, effective January 1, 1990, the provisions of the New Mexico Occupational Disease Disablement Law shall apply to all employers of employees, except employers of ranching or agricultural laborers and employers of private domestic servants. Employers who have in service less than four employees and after January 1, 1978 less than three employees, employers of ranching or agricultural laborers, employers of private domestic servants and partners and self-employed persons and, effective January 1, 1990, employers of ranching or agricultural laborers, employers of private domestic servants and partners and self-employed persons shall have the right to come under the terms of the New Mexico Occupational Disease Disablement Law by complying with the provisions hereof.

B. The term "regularly employed", as herein used, unless the context otherwise requires, shall include all employments in the usual course of the trade, business, profession or occupation of the employer, whether continuous throughout the year or for only a portion of the year.

C. Any person, firm or corporation engaged in the performance of work as an independent contractor shall be deemed an employer within the meaning of this section. The term "independent contractor", as herein used, is defined to be any person, association or corporation engaged in the performance of any work for another, who, while so engaged, is independent of the employer in all that pertains to the execution of the work, is not subject to the rule or control of the employer, is engaged only in the performance of a definite job or piece of work and is subordinate to the employer only in effecting a result in accordance with the employer's design.

D. For the purposes of the New Mexico Occupational Disease Disablement Law, an individual who performs services as a qualified real estate salesperson shall not be treated as an employee and the person for whom the services are performed shall not be treated as an employer.

E. For the purpose of Subsection D of this section, a "qualified real estate salesperson" means an individual who:

(1) is a licensed real estate salesperson, associate broker or broker under contract with a real estate firm;

(2) receives substantially all of his remuneration, whether or not paid in cash, for the services performed as a real estate salesperson, associate broker or broker under contract with a real estate firm in direct relation to sales or other output, including the performance of services, rather than to the number of hours worked; and

(3) performs services pursuant to written contract between himself and the person for whom the services are performed, and the contract provides that the individual will not be treated as an employee with respect to such services.

History: 1941 Comp., § 57-1102, enacted by Laws 1945, ch. 135, § 2; 1953 Comp., § 59-11-2; Laws 1971, ch. 261, § 6; 1972, ch. 65, § 3; 1973, ch. 239, § 1; 1975, ch. 317, § 1; 1987, ch. 260, § 2; 1989, ch. 263, § 48.

Subject to act until notice of rejection. — Once an employer has come under the act he remains subject thereto until he complies with giving notice of rejection in the manner by the act provided. 1945 Op. Att'y Gen. No. 45-4778.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 27 Am. Jur. 2d Employment Relationship §§ 241, 265.