New Mexico’s “Criminal Offender Employment Act” To Prohibit Private Employers From Criminal History Inquiry On Initial Employment Applications

Effective July 1, 2019, a new section of The Criminal Offender Employment Act will prohibit private employers from inquiring about an applicant’s arrest or conviction history on an initial employment application (written or electronic). The employer may take into consideration an applicant’s conviction after review of the employment application and upon discussion of employment with the applicant. Nothing in the statute prohibits an employer from notifying the public or an applicant that the law or the employer’s policy could disqualify an applicant who has a certain criminal history from employment in particular positions with that employer (e.g., within a job posting or during an interview).

Employers in New Mexico should review their employment applications and relevant employment forms to ensure compliance with federal, state, and local law. Employers who operate in multiple jurisdictions should particularly review any standardized forms that may be in use to ensure compliance. Employers also should ensure that all hiring and recruiting personnel are aware of “ban the box” laws -- and whether they apply to them. Employers with questions regarding “ban the box” should consult with counsel.